The Honourable Mrs Justice Simler DBE:
Introduction
- These five claims have been heard together because they raise similar issues. All five Claimants are failed asylum seekers from Iran who claim to be entitled to the benefit of a grant of indefinite leave to remain ("ILR") (or some other grant of leave) arising from the Secretary of State's programme for the resolution of a large backlog of unresolved asylum cases announced in July 2006, referred to here as the "Legacy Programme". There were other unresolved case backlogs at this time and these also required resolution as part of the general resolve to tackle the legacy of unresolved cases, but the focus of this challenge is to the Legacy Programme in relation to unresolved asylum cases. The work carried out under the Legacy Programme was undertaken by a department called the Case Resolution Directorate (CRD) established for this purpose. Subsequently the Case Assurance and Audit Unit (CAAU) inherited this work along with other cases not within the Legacy Programme. The asylum cases dealt with under the Legacy Programme were unresolved asylum cases where the claim for asylum was made before 5 March 2007, and where for a number of reasons, the claim had not been finally concluded.
- At the beginning of the hearing, Mr Paul Turner, counsel for all the Claimants, made an application to adjourn because of the late service of witness statements by the Defendant. For the reasons given in a separate ruling, the application was refused, but Mr Turner was given two hours in the course of the day to consider the new material. He was also permitted to make factual submissions in writing in relation to the late witness statements following the hearing. He has done that, and gone further, serving a substantial additional bundle of documents and a witness statement from his solicitor, also called Paul Turner.
The Issues
- Permission for judicial review has only been granted in the cases of Mr Hamzeh and Mr Abdullahi. In Mr Hamzeh's case the grant was on the question whether difficulties in enforcing removal to Iran give rise to an entitlement to leave to remain since it is not possible to conclude this case by removal. In Mr Abdullahi's case the grant was based on failure to give adequate reasons following the case of Mohammed (reference given below).
- In the cases of Mr Nejad, Mr Jaffar, Mr Ahmadi and Mr Abdullahi permission has been refused on the "removability" issue, but following renewed applications for permission, these cases have been listed for a rolled up permission hearing with that of Mr Hamzeh.
- The grounds have been formulated and re-formulated over the course of the judicial review applications and during the hearing. Mr Turner's final (as he confirmed both orally and in writing) formulation of the Claimants' core grounds of challenge is as follows:
i) There was an unlawful failure (at the time of the decisions and/or on an ongoing basis) to conclude these cases.
ii) If not, the refusal letters in these cases cannot be lawful decisions in circumstances where there has been no consideration of removability and/or length of residence and delay.
iii) The Defendant has failed to seek to document or remove the Claimants or take any steps to assist them home resulting in a state of "limbo" which is unlawful and in breach of their Article 8 rights.
- So far as (iii) is advanced as a free-standing ground of challenge, Mr Turner accepts that he does not have permission to pursue it, and any application for permission would be opposed by the Defendant. None was in fact made by Mr Turner.
- Accordingly, the issues are as follows:
i) Was there an unlawful failure (or is there any ongoing failure) to conclude these cases by removal or grant of leave?
ii) Has there been a lawful legacy decision in these cases or does the fact that the Claimants claim to be 'irremovable' entitle them to leave under paragraph 395C or 353B of the Immigration Rules, or any other rule of law or policy?
iii) Has the Defendant's failure to remove (or to take steps to re-document etc) the Claimants led to them being in a state of limbo that constitutes a disproportionate interference with their rights to family or private life under Article 8 of the Convention?
iv) Was there a failure to give adequate reasons and/or any legal obligation to state specifically that 395C and/or chapter 53 EIG is being applied and/or to have regard to materially relevant considerations, namely length of residence and/or removability?
- There are a number of common factual features in relation to the five cases. First, all Claimants entered the UK illegally and made a claim for asylum that was rejected. The asylum decision was appealed in each case and was the subject of adverse credibility findings on appeal. All Claimants (except Mr Jaffar who was never properly served) failed to report in accordance with reporting requirements imposed upon him. Finally, each has failed to leave the UK on a voluntary basis, after receiving notification of the refusal to grant ILR in his case.
- The Claimants have produced many volumes of documents, including most of the witness statements and underlying documents available to the court in Hakemi and Geraldo. These include several statements from Mr Neil Forshaw, an Assistant Director of the UKBA who deals among other things, with the work of the CRD and the transfer of cases to the CAAU; and a statement of Neil Parkin, a grade 7 civil servant of the Home Office. Both Mr Forshaw and Mr Parkin attended the hearing in Geraldo for cross-examination and the effect of their evidence is dealt with in the judgment in that case. All of the source material relied on by Mr Turner in this case was available in Geraldo (and indeed, much of it available in Hakemi) and was explored at length with these witnesses.
- I have also received two more recent witness statements from Mr Forshaw prepared for this case; statements from Mr Ahmadi and Mr Nejad addressing the question of documentation and their willingness to co-operate with the Defendant in obtaining or making efforts to obtain identity documentation; and the statement of Paul Turner, solicitor, exhibiting a bundle of documents relating to a number of other entirely un-related cases in support of a consistency of treatment argument.
The Legacy Programme
- The policies and practices of the CRD and CAAU in relation to the legacy arrangements put in place to deal with unresolved asylum claims, have been examined in a number of judgments of this court, including FH and others v. SSHD [2007] EWHC 1571 (Collins J); Hakemi and others v. SSHD [2012] EWHC 1967 (Burton J); Mohammed v. SSHD [2012] EWHC 3091 (Stephen Morris QC); Geraldo and others v SSHD [2013] EWHC 2763 (King J) and most recently Rahim [2013] EWHC 2794 (Mark Ockleton); Che v. SSHD [2013] EWHC 2220 (Mark Ockleton); and Baser and others v. SSHD [2013] EWHC 3620 (Eady J).
- In Hakemi and Geraldo in particular, the court examined emails sent to caseworkers by Mark McEvoy at the end of August 2011, said by Mr Turner to be of particular importance in this case. King J was presented with material relied on by the claimants in that case (and again in this) as evidence of maladministration and administrative delay on the part of the Defendant in dealing with cases under the Legacy Programme. He considered the report of the Parliamentary Home Affairs Select Committee; the House of Commons library paper, entitled Asylum: Legacy Cases, dated 10 August 2010; and significantly, the highly critical report of the Independent Chief Inspector of Borders and Immigration, John Vine, for the quarter ending July 2012 – all of which are relied on by Mr Turner here.
- At paragraph 39 to 49 in Geraldo, King J summarised the background as follows:
"39. The Case Resolution Programme or the Legacy Programme, was instigated by the government in July 2006 to deal with a vast backlog of unresolved asylum claims, this is to say for the most part failed asylum claims, some going back many years in which the unsuccessful claimant had neither been removed nor a decision made to grant him or her leave to remain in the UK on some basis other than the claimed refugee statue either within the Immigration Rules or outside the Rules, and with many of whom the Home Office had lost contact. One of the problems was that as at July 2006 there were in the region of 400-450,000 electronic and paper records concerning such claims within the Home Office which had not been opened or reviewed (and indeed once the programme was under way further records came to be included, ultimately reaching a total caseload of some 500,000 – see the report of the Parliamentary Home Affairs Select Committee for April-July 2011) but which were recognised to be 'riddled with duplication and errors and cases of individuals who have since died or left the country or become EU citizens', (to quote the statement of the then Home Secretary Dr John Reid MP to Parliament in July 2006). As Mr Neil Forshaw told me, until the exercise of going through the vast archive of assorted records was undertaken to identify how many cases remained to be dealt with, the true nature of the task undertaken under the programme could not be known.
40.The programme was an operational programme only. That is to say it was a programme designed to deal with the backlog, with its own internal priorities and procedures, but it was always made clear that the programme did not involve any kind of amnesty and that cases handled within the programme would have applied to them the same generally prevailing law and policy which applied to all other immigration and asylum cases, being handled within other units elsewhere within the UKBA. I say at once that none of the evidence before me supports the proposition that there was a discrete 'legacy policy' different from that applied to other, for example, failed asylum cases not within the programme, where consideration was being given to the grant of leave outside the Rules (on this aspect see further the decision of Burton J in Hakemi and Others [2012] EWHC 1967 (Admin)). In other words the programme did not purport to create any new substantive rights or new basis for the grant of leave.
41.To handle and work through the cases within it, the Casework Resolution Directorate (CRD) was established to review and make a decision (that is whether to remove or grant leave) in each of the cases over time. It was always recognised that this would take a number of years.
42.On any view of the contemporaneous material, the aim was to clear the backlog within five years, although whether the government ever undertook more than such an aspirational objective, and whether in any event a specific cut off date was contemplated, is at the heart of the proceedings before me. I deal with this issue and the relevant material relied on by the Claimants below.
43.The programme started work on selected cases on 1 November 2006. The CRD was created on 1 April 2007. Case records were allocated to case owners from December 2007. The programme dealt only with cases where the initial asylum claim was made prior to 5 March 2007. Applications made after that date were to be dealt with by other units within the UKBA under the New Asylum Model (NAM) aiming to decide cases much more speedily than before.
44.The essential organisational features of the programme were described in the briefing information paper placed in the House of Commons library (entitled Asylum: Legacy Cases) dated 10 August 2010, in these terms (any emphasis is the emphasis of this court):
- Information about the legacy programme is given on the UKBA website – this explains that legacy cases are those asylum applications made before 5 March 2007 which have not been concluded 'either because of errors in recording information or because there is still some action we need to take'. These include:
outstanding asylum applications;
asylum applications which have been refused but there is no indication that the applicant has left the UK;
in time applications for further leave to remain from applicants previously granted a temporary form of status such as Discretionary leave
'people cannot apply to be considered under the programme' as it is only for cases that have been in the system for a very long time already.
- The cases are being handled end to end by about 950 caseworkers in 40 regional teams. Each case is allocated to a case worker who is responsible for it until it is 'concluded (whether that is by granting leave or ensuring removal');
- 'once a case has been selected for consideration', the case worker may send a questionnaire to the individual with a deadline for its return. Applicants will only be sent a questionnaire if the case worker thinks they need more up to date information on the applicant's case before they review it. From 4 June 2008 CRD has notified individuals and their legal representatives when one of its teams begins actively considering their case, but there are exclusions from this policy;… all of the cases falling within the CRD caseload are believed to have been allocated to a CRD team by now.
- The UKBA website contains the following guidance for individuals wishing to contact CRD staff:
In all cases we would prefer to receive correspondence only if further or supporting evidence is to be provided. Enquiries about the progress of a case may slow down the consideration progress.
45.The CRD processed cases according to four published priorities (cases in which the individual concerned might pose a risk to the public; those who were in receipt of public support; those cases in which it was likely a decision would be made to grant leave; cases where the individual could easily be removed from the UK) but retained a discretion to deal with exceptional or compassionate cases out of turn.
Delays
46.The programme inevitably, given the size of the backlog, led to further delays in dealing in particular with those who had outstanding 'further submissions' but the process instigated by the Programme, including the adoption of the stated priorities, was nonetheless upheld as lawful by Collins J in FH & Others v SSHD[2007] EWHC 1571 (Admin). That decision considered the historic delays, but had regard to the sheer volume and complexity of the task being undertaken, and the wide discretion given to the Secretary of State in administering applications for leave to remain, in answering in the affirmative that which the court regarded as the critical question namely 'whether the manner in which the backlog is being dealt with is in all the circumstances as reasonable and fair' (see judgment at paragraph 21).
47.It is to be noted that the delays considered in FH (i) were in most cases a delay in decision making on further submissions ('… the majority of these claims involve applications which are said to amount to fresh claims following the rejection both by the Defendant and the appellate authority of the Claimant's initial asylum application') (paragraph 12), (ii) varied between 2 to 5 years, and that the court there held that although such delays were not to be condoned, 'none were so excessive as to be for that reason along unlawful' (paragraph 21).
Decision to grant leave inside the Rules and outside the Rules
48.Not all cases within the programme necessarily involved a fresh claim submission of the kind with which FH was concerned (which would involve consideration by the case worker of the fresh claims and paragraph 353 of the Immigration Rules), and as Eady J pointed out when himself considering the workings of the legacy programme in Baser v SSHD [2012] EWHC 3620 (Admin), at para 15, the mere fact that an individual was being considered under the programme did not entail an immigration decision since 'that would only arise if a fresh application (for leave to remain) had to be considered'. In some cases consideration under the programme would simply lead to a confirmation, where no further applications or submissions had been received, that the applicant in question still had no basis for leave to be granted and should be removed. The case worker did still however, even if there were no application for leave to remain within the Rules, on the basis of for example a fresh claim have to consider whether or not to make a decision to remove the individual.
49.This tension between a decision whether or not to grant leave within the Rules and if not, whether to grant leave outside the Rules in the exercise of the defendant's general discretion under section 4(1) of the Immigration Act 1971, has been emphasised throughout the Defendant's evidence before me in support of the submission that the CRD was concerned with both types of decision, albeit the majority, in so far as a grant were made, were a decision outside the Rules. I would accept that evidence. Again to quote the House of Commons Paper:
'When the CRD considers a legacy case it does so using the ordinary criteria for deciding whether or not to recognise Refugee status or to grant another form of leave such as Humanitarian Protection or Discretionary leave… where applicants do not fit any of the specific criteria for being granted leave to remain, UKBA workers must also consider whether their case falls within any of the general considerations which would prevent removal.'
- The CRD was wound down in 2011 and outstanding cases were transferred to the CAAU. The original remit of the CAAU was to focus on cases under the Legacy Programme, but subsequently the CAAU dealt with a wider range of cases and was not restricted to dealing with Legacy Programme cases only. King J dealt in Geraldo with the transfer from CRD to the CAAU of the "unresolved cases" as follows:
"60. As already indicated by reference to the Lin Homer letters, the Case Resolution Programme was monitored by a parliamentary select committee (HASC). B the time the CRD was would up in 2011, HASC in its report of April – July 2011 (published November 2011) noted a final position of '500,500' records of which 479,000 cases were said to be 'concluded' of which 172,000 had been granted 'leave to remain', 37,500 had been removed, and 268,000 were 'others' which included supplicate records, errors or cases in the 'controlled archive' which then stood at 98,000 to which 500 would be added if not traced within 6 months. 3,000 stood to be granted subject to security checks.
61.The then 18,000 legacy cases then identified as still outstanding, together with the controlled archive, were transferred to the CAAU in Liverpool to be resolved by that unit. Mr Forshaw's evidence (second w/s paragraph 20) was that the arrangements for transfer were made well before July 2011 and the CRD closed in March 2011. It is clear that the evidence to the HASC from the Home Office (in particular Jonathan Sedgwick, Acting Chief Executive of the UKBA on 13 September 2011), was that all of these 'non concluded cases' were cases which had been 'reviewed' under the programme and a decision had been made, but for one reason or another removal had still to be completed with the explanation being ongoing litigation, impending prosecution, incomplete legal or criminal proceedings, non compliance and offenders from 'difficult to remove countries' (see HASC report at para 15). In similar vein the response of the government to the HASC's 9th report of session 2010-12 ('On 31 March 2011 the UK Border Agency had reviewed all cases in the asylum backlog, ahead of schedule').
62..In fact, not long after, it emerged that this was an inaccurate statement to Parliament and there were a number of cases which had not been reviewed at all, albeit they were available to be reviewed. How many unresolved cases fell into this category is by no means clear. In his highly critical report for the quarter ending July 2012, the Independent Chief Inspector of Borders and Immigration, John Vine, spoke of 9,393 cases as having been identified by the CAAU as 'where reviews had not been carried out'. However Miss Anderson makes the point that this has been shown to be 'loose language' (referring to the evidence drawn to my attention of Mark McEvoy, Assistant Director of the CAAU, in Hakemi). She herself also drew my attention to the evidence of ILPA to the Home Affairs Committee that the unreviewed cases may be 'hundreds possibly more'.
63.The critical point to be made at this stage however is that this has been acknowledged by the defendant for some time. To quote Mr Forshaw at para 15 (first w/s):
'In evidence to HASC on 13 September 2011 it was stated that as at that date there were still a number of cases which were not concluded (i.e. leave granted or actually removed). It is recognised however that at this time it was stated that all the legacy cases had been reviewed. This was a regrettable inaccuracy for which UKBA has accounted to Parliament. UKBA now recognises that there are cases that were not fully reviewed by CRD but should have been, and cases that were placed in the controlled archive (and therefore not fully reviewed by CRD) even though some contact had been maintained.'"
- So far as questions of maladministration are concerned, similar submissions were made in Geraldo in that regard as are made by Mr Turner in this case. King J dealt with them in Geraldo at paragraphs 64 to 66. He recorded that the Vine report contained material relied on as evidence of maladministration and administrative delay on the part of the Defendant in dealing with cases falling within the Legacy Programme. The report is embarrassing for the Defendant and makes uncomfortable reading, but its relevance to the grounds of challenge was questionable in Geraldo as it is here.
The legal and policy framework
- Section 4(1) of the Immigration Act 1971 confers on the Defendant the power to grant leave to remain in the UK, and to determine the period of any such leave. By s. 10 Immigration and Asylum Act 1999 (the "IAA 1999"), the Defendant has power to remove those who fail to comply with conditions attached to their leave to enter or remain beyond the time limited by their leave, or use deception in seeking leave to remain.
- To enable some degree of consistency, decision-makers on behalf of the Defendant exercise their discretion in accordance with the Immigration Rules and guidance issued by the Defendant including in the form of Asylum Policy Instructions. The Immigration Rules are not subordinate legislation. They are to be seen as statements by the Secretary of State as to how she proposes to control immigration. But as the Supreme Court held in Alvi v. SSHD [2012] UKSC 33, the scope of her duty is now defined by statute. The obligation under section 3(2) of the 1971 Act to lay statements of the rules, and any changes in the rules, cannot be modified or qualified in any way by reference to the common law. Everything in the nature of a rule as to the practice to be followed in the administration of the Act must be laid before Parliament.
- It is generally well established that the Defendant is entitled to apply policy applicable at the date of the relevant decision and to consider each case on its own merits in accordance with current policy. There is no general principle of public law requiring the Defendant to ignore current or changed circumstances in making a decision so that if the decision had been made earlier and would have resulted in a more favourable outcome for an individual, whatever the changed circumstances, the more favourable outcome is required to be given. There may be circumstances where she is required to take account of incorrect decisions made in the past and the injustice they have or may have caused to the applicant under the principle set out in Rashid v. SSHD 2005 EWCA Civ 744 and S, H and O v. SSHD [2009] EWCA Civ 142 (as applied for example, in Mohammed). However, before the corrective principle can apply it must be demonstrated that there has been a public law error that requires correction in the later decision. In this context, the court is not concerned with maladministration, but only with illegality. If maladministration produces a decision that is unlawful, this can be the subject of a successful challenge, but not otherwise.
- The policy of the Defendant is to remove illegal migrants from the UK unless it would breach the Refugee Convention or the ECHR, or there are exceptional circumstances (or compelling reasons) in an individual case for not doing so. Accordingly, before the power to remove under s. 10 IAA 1999 is exercised, paragraph 395C of the immigration rules (in force until 12 February 2012) provided a non-exhaustive list of relevant factors to be considered if known, including age, length of residence in the UK, strength of connections with the UK, personal and domestic circumstances, criminal record, compassionate circumstances and representations received on the individuals behalf.
- With effect from 13 February 2012, paragraph 353B replaced paragraph 395C, providing as follows:
"Exceptional Circumstances
353B where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant's:
i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;
ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;
iii) length of time spent in the UK 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 UK is no longer appropriate."
- The non-exhaustive factors listed in paragraph 395C (and subsequently paragraph 353B) are to be considered in deciding whether, notwithstanding that the applicant has no right to be in the UK and is liable to be removed under s. 10 IAA 1999, he or she should nevertheless not be removed. It provides for an exception from removal on exceptional, compelling or compassionate grounds outside the Rules.
- In TE (Eritrea) v. SSHD [2011] EWCA Civ 811 the Court of Appeal observed in relation to paragraph 395C that (i) the factors listed are not requirements to be met by an individual: they are matters that are relevant to the making of the decision whether or not to remove the applicant - factors to which regard must be had; (ii) since they are not exhaustive, other factors may weigh both for and against the applicant; and (iii) the process is described as weighing the liability to removal, and thus the maintenance and enforcement of sensible and effective immigration controls, against the largely personal factors which make it appropriate to allow the applicant to remain.
- Published guidance on the exercise of discretion in paragraph 395C (and 353B) is contained in chapter 53 of the Enforcement Instructions and Guidance ('EIG'). The EIG contains generally applicable guidance across the whole of what was the UKBA and is not limited or specific to cases considered by CRD or as part of the Legacy Programme.
- Changes are made to chapter 53 EIG over time, independently of the operation of the Legacy Programme. For example, prior to April 2009, there was no period specified in the section of the EIG dealing with length of residence – length of residence was simply a factor to be considered alongside others. Chapter 53 was revised in August 2009, for all cases (not just legacy cases) to allow caseworkers across the UKBA to take account as potentially significant, periods of residence of 6 to 8 years with a lower limit of 4 years (in the April 2009 guidance the potentially significant periods of residence were 10 to 12 years). The guidance was revised again in July 2011 following the introduction of the discretionary leave (DL) policy, and again, this change applied across all areas of the UKBA.
- When paragraph 395C was replaced by paragraph 353B, chapter 53 EIG was revised, placing the onus on the applicant to raise factors (including compassionate factors or protection issues) that may be relevant to the question whether removal is appropriate.
- Chapter 53 EIG is at the heart of these judicial review challenges and the relevant guidance in force at the relevant date of each decision requires consideration. However, the following points are common to each edition of chapter 53:
i) it makes use of the factors set out in 395C/353B, giving more detailed guidance under each listed factor.
ii) It expressly states that the list is not exhaustive.
iii) Consideration of relevant factors needs to be taken as a whole rather than individually – referred to by the Defendant as a holistic consideration.
iv) Discretion not to remove on the basis of exceptional circumstances will not be exercised on the basis of one factor alone.
- So far as Mr Hamzeh is concerned, the relevant section of chapter 53 in force at the material time provides as follows (emboldened text as in original):
"53.1.1 Exceptional circumstances – Relevant Factors
Relevant factors are set out below, but this list is not exhaustive.
The consideration of relevant factors needs to be taken as a whole rather than individually. When determining whether or not exceptional circumstances exist, considerations of the relevant factors in 353B needs to be taken as a whole. Discretion not to remove on the basis of exceptional circumstances will not be exercised on the basis of one factor alone.
i) Character, conduct and association including any previous criminal record and the nature of any offence of which the applicant 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
Where there is evidence of an attempt by the individual to delay or frustrate the decision-making process, frustrate removal, or otherwise not comply with any requirements imposed upon them, then this will weigh against the individual.
Caseworkers must also take account of:
·Evidence of deception practiced at any stage in process;
·Failure to attend interviews as requested;
·Failure to supply information as requested (eg for re-documentation);
·Failure to comply with reporting conditions;
·Whether they have worked illegally
·Any other type of fraud or deception, such as benefit fraud or NHS debt;
·An individual's lawful employment history and how they have supported themselves and/or their family;
·A sustained history of compliance with every requirement UKBA has made of them. Including providing full information in their application, attending interviews, compliance with reporting requirements.
Caseworkers must assess all evidence of compliance and non-compliance 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.
iii) Length of time in the UK accrued for reasons beyond the migrant's control after their human rights or asylum claim has been submitted or refused;
The length of residence in the UK is a factor to be considered where residence has been accrued by an unreasonable delay which is not attributable to the migrant. Periods of residence which are caused by actions of non-compliance attributable to the migrant will not count in the migrant's favour. More weight should be attached to the length of time a child has spent in the UK compared to an adult.
Provided that the factors outlines in "Character" or "Compliance" do not weigh against the individual then caseworkers should also consider where there have been significant delay by UKBA, not attributable to the migrant, in deciding a valid application for leave to remain on asylum or human rights grounds or where there are reasons beyond the individual's control why they could not leave the UK after their application was refused. For example:
'Family' cases where delay by UKBA, or factors preventing departure, have contributed to a significant period of residence (for the purposes of this guidance, 'family' cases means parent as defined in the Immigration Rules and children who are emotionally and financially dependent on the parent, and under the age of 18 at the date of the decision). Following an individual assessment of the prospect of enforcing removal, and where the factors outlined in "Character" and "Compliance" do not weight against the individual, family cases may be also be considered exceptionally on grounds of delay where the dependent child has lived in the UK for more than 3 years or more whilst under the age of 18.
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 against the individual, concludes that the person will have been in the UK for more than 6 years.
…..
53.1.2 Grants of Leave to Remain in Exceptional Circumstances
If having considered the factors set out in the guidance in 53.1.1 above removal is no longer considered appropriate then Discretionary Leave to Remain should be granted…
Challenge to principles established by case-law in Legacy cases
- A number of points established by the Legacy Programme cases are challenged by Mr Turner in this case. He submits that neither Burton J nor King J had the benefit of the detailed analysis of the "source documents" available to them and available to the court in this case. Such a detailed analysis reveals, he submits, the error in their approach as follows.
- There can be no doubt that Hakemi and Geraldo establish that the Legacy Programme was an operational programme only. In other words, a programme designed to deal with the backlog, with its own internal priorities and procedures, but not involving any kind of amnesty. Consequently, cases handled within the Legacy Programme would have applied to them the same generally prevailing law, policy and guidance in force at the date of the decision, as applied to all other immigration or asylum cases, being handled within other units elsewhere across the UKBA.
- Mr Turner submits nevertheless, that from December 2010 or August 2011 there was a significant change in policy or practice or the introduction of a new immigration rule (possibly without necessary Parliamentary scrutiny, although it is not clear how this point, if established, could begin to assist his case) in relation to Legacy Programme cases. He relies on the "McEvoy email" (referred to below), together with training slides produced for CRD caseworkers and the pro forma forms provided to such caseworkers for completion when carrying out an assessment of the relevant factors (under paragraphs 395C, 353B and chapter 53 EIG) in any given case. He contends that together, these documents indicate a significant change from a holistic evaluation of all relevant factors to a significantly more liberal tick box exercise focused on length of residence but where leave to remain would be granted if an individual in the Legacy Programme had been in the UK for four years, had no convictions, was of good character and had reported at least once in the last 12 months or had an outstanding application of three or two years. If this changed or new policy did not apply across the whole of the UKBA, he submits that it created a separate class of Legacy Programme applicants, to whom a discrete policy applied.
- Having carefully considered all the documents and materials relied on by Mr Turner, I cannot accept this submission. A proper examination of the CRD training slides demonstrates that they do not reflect any change in policy. They are consistent with the published rules and the guidance contained in chapter 53 EIG. They refer repeatedly to and emphasise the importance of considering all the factors and taking a holistic approach.
- Moreover, the December 2010 version 10.1 pro forma, like the versions before it, continued to require an evaluation of all relevant factors. Although there are some closed questions on the form, for example seeking to identify the type of case and level of caseworker to whom it should go, a box for completing details under each question on the pro forma enables the caseworker to identify and evaluate information about the different factors: the applicant's character and compliance with UKBA; so far as periods of delay are concerned the box invites details of whether the delay was through the individual's own failing or any error on the UKBA's behalf; details of domestic or compassionate circumstances are expressly sought. The final section of the pro forma directs the caseworker to explain his or her decision "after assessing all the evidence in the round". This was not the tick box exercise asserted by Mr Turner; nor does it evidence any change in policy or practice.
- Mr Turner also relies on the email sent by Mr McEvoy dated 31 August 2011, confirming (among other things) that caseworkers could use the lowest limit of residence relevant to the applicant's family status and accept any reporting activity in the last 12 months as sufficient evidence of compliance. This email together with evidence given by Mr McEvoy and Mr Forshaw was considered by Burton J in Hakemi. He accepted at [9] the evidence before him that this email related to 4800 cases whose resolution had become urgent, and at [15] that it did not involve a change in policy but only discussion and guidance in relation to the factors in paragraph 395C of the Immigration Rules. Further, Mr McEvoy states (at [5] of his witness statement in Hakemi) that the email related to approximately 4800 cases which had already been reviewed by CRD, but where no decision had been communicated before CRD was closed, although it was thought likely that they would be grants of leave to remain. Although Mr McEvoy and John Vine both use the word "review", it is clear from the context of their statements that they are referring to different things: Mr McEvoy uses the word to refer to a case that had been looked at or reviewed and identified as a likely grant, but no decision had been reached/communicated; Mr Vine referred to cases that had been reviewed in the sense that a decision had been reached. I do not accept that there is the inconsistency suggested by Mr Turner, or that it affords a basis for saying that Mr McEvoy is not telling the truth.
- There is nothing in the material put forward by Mr Turner during this hearing that casts doubt on the truth of this evidence. Nor does the fact that there was estimated to be 33,000 additional cases (whatever their composition) being worked on by the CAAU around that time (as referred to at paragraph 8 of the March 2013 final report), or that the fact that the transition from CRD to CAAU was poorly handled, alter this position. Indeed it is difficult to see what relevance the estimate of 33,000 additional cases has at all to any of the issues raised in this case; and Mr Turner was ultimately driven to accept that it was not central to his case, but illustrated that "things did not add up" in the UKBA.
- Even in Mohammed on which considerable reliance is placed by Mr Turner, wider arguments as to the legacy cases, including an argument that Ms Mohammed (who had 11 years long residence in the UK) had a legitimate expectation to be granted leave, were dismissed and the case was decided on a Wednesbury/fairness review of the paragraph 395C decision. Although in Mohammed, there was a finding that the Defendant failed to take account of the period of residence in the UK as a relevant factor, Stephen Morris QC made clear at [71]:
"I do not consider that it is arguable that there was a policy that leave would be granted on the basis of a sufficient long period of residence alone."
- I am quite satisfied that there was no change of policy, nor any introduction of a new policy applicable only to Legacy Programme cases. The evidence demonstrates that when general changes to policy or practice are made, they are made in published guidance, as for example in chapter 53 EIG. None of the evidence supports the proposition that there was at any time a discrete "legacy policy" different from the general policy applied to failed asylum cases not within the Legacy Programme, where consideration was given to the grant of leave outside the immigration rules. The evidence does not contradict or undermine the proposition that the Legacy Programme did not create new substantive rights or any new basis for the grant of leave applicable only to this group.
- Even had I been satisfied that there was a change of policy for the cohort of 4800 cases referred to in Mr McEvoy's email (which I am not), the evidence establishes that none of these Claimants fell within this particular cohort; and there is no suggestion by them that their cases fell within the 33,000 cohort. Accordingly, I cannot see how this material assists Mr Turner's case.
- 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.
- 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.
- 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.
- Finally, under this heading, the question of what is meant by the term "a concluded case" for the purposes of the legacy programme has been raised by Mr Turner, as it was in Geraldo. There is nothing in the Immigration Rules that creates a free-standing obligation to conclude a case. In Geraldo, the claimants argued that for legacy cases a "conclusion" meant either removal or a grant of indefinite leave to remain and that, either there was a promise at the outset or alternatively, given the very rationale of the legacy programme, if removal was not appropriate the only other outcome could be a grant of indefinite leave to remain. The focus there was on what was encompassed by "the grant of leave" rather than considering what "removal" meant for these purposes. However, this challenge failed in Geraldo: the argument that there was a policy, undertaking or promise from the outset to conclude a case by granting ILR where removal was not considered appropriate was not in the end pursued; and King J held that the failure to grant ILR was not inconsistent with the very rationale of the Legacy Programme for similar reasons as those which would have applied to the former argument. The fatal flaw in these arguments (as it was described by King J at [125]) was that they ignored the clear evidence that the Legacy Programme did not have its own substantive policies, 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.
- Here, Mr Turner makes much the same submission: a case cannot be "concluded" under the Legacy Programme otherwise than by removal or the grant of some form of leave, albeit he no longer contends that this has necessarily to be ILR. The material relied upon to support Mr Turner's argument is the same as the material considered and tested in cross-examination by the claimants before King J in Geraldo. In particular, Mr Turner relies on statements made by Emily Miles, Lin Homer and others to establish that the Defendant considered a "conclusion" for these purposes to be either removal or a grant of leave. He also relies on paragraphs 15 to 19 of Mr Forshaw's second statement in this case where he states:
"The aim in dealing with the legacy cases is to review every case that is capable of being reviewed and to conclude cases wherever possible, through either a grant of leave or removal from the UK. … As such, a case that previously fell within the cohort of legacy cases, would be regarded as concluded at the point an individual chose to voluntarily depart from the United Kingdom (as long as they did leave)" ..
- As a matter of fact, it appears that the view as to what constituted a conclusion changed over time, particularly once the work on legacy cases was underway and practical issues began emerging. Moreover, it also appears that the term "removal" had a wider meaning than simply enforced removals, encompassing voluntary departures and assisted voluntary departures as well: see paragraph 4.5 Chief Inspector Vine's Report July 2012.
- However, it is undoubtedly correct that the Defendant aimed to deal with the legacy of unresolved cases in five years or less, bringing them to a conclusion. That this was the aim and the plan of those responsible is non-contentious. Moreover, there were targets in place to achieve this and in the July 2012 Vine report, he referred to the fact that the then Home Secretary, had made "a commitment that the UK border agency "must deal with" the legacy of unresolved asylum cases no later than the summer of 2011."
- However, there is a difference between an aim or aspiration to conclude unresolved cases and an obligation (whether as a matter of legal obligation or by reference to a policy) to do so. To succeed on this argument, the Claimants must establish a commitment the breach of which amounts to a public law error. The evidence does not establish anything more in my judgment, 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 Dr Reid when the Legacy Programme was established, whether to Parliament, the public, or to each legacy applicant to conclude these cases, still less to do so by any particular date (see paragraph 102 Geraldo and following). Nor is there any material to establish a binding commitment or policy adopted to do so at any later stage.
- 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.
The legal consequences of being "irremovable"
- The obligation to leave the UK where a person does not have any basis for remaining here is a fundamental tenet of the immigration system.
- Where voluntary departure does not take place, enforced removal will follow but it is necessary for the person being removed to have a valid travel document. In many cases the person being removed will use their own valid passport. In cases in which the person does not have a passport the Defendant can apply to the UK Embassy of the destination state for an emergency travel document ('ETD').
- Since November 2011 the Iranian Embassy in London has been closed and as a result it is currently not possible for the Defendant to obtain ETDs for undocumented Iranians although the evidence establishes that UKBA continues to work with the FCO to pursue the provision of travel documentation to facilitate the removal of Iranian nationals with no lawful basis to remain in the UK. Further, Mr Turner has identified entries in GCID record sheets to Mr Nejad and others as "undocumented Iranians".
- However, no general policy or practice has been identified or established by the Claimants to the effect that persons whose removal from the UK cannot be enforced, should, for this reason alone, be granted leave. It is not difficult to see why this should be the case. A policy entitling a person to leave to remain merely because no current enforced removal is possible, would undermine UK immigration law and policy, and would create perverse incentives to obstruct removal, rewarding those who fail to comply with their obligations as compared to those who ensure such compliance. Moreover, in the same way as immigration law and policy may change, so too the practical situation in relation to enforcing removal may change or fluctuate over time so that any current difficulties cannot be regarded as perpetual.
- Mr Turner has identified a policy applicable to British Overseas Citizens only (not therefore applicable to the Claimants) who claim to be unable to return to their former country of residence. Far from assisting his case, this policy highlights the restrictive approach adopted by the Defendant to such cases. The policy is referred to as the "limbo policy" and found at chapter 22 section 2 of the Immigration Directorate's Instructions. It was considered recently in the case of Ku [2013] EWHC 3881 (Admin). BOCs have no right of abode in the United Kingdom and are subject to immigration control. For those BOCs in the UK who claim to have no other nationality, the policy places the burden on the applicant to establish that he cannot be returned and genuinely finds himself with nowhere to go. The evidence he may produce to discharge this burden is required to take the form of a letter from the appropriate authority of the country of normal residence confirming the person's non-returnability, for example, a refusal to issue a re-entry visa; and the applicant is also required to produce a copy of his or her application to this authority if available.
- Ms Anderson submits and I agree, that it would be anomalous to adopt a less restrictive approach in the case of non BOC migrants, than that identified in the limbo policy. Accordingly, when assessing the evidence of the Claimants in relation to removability, the Defendant is entitled to expect the burden to be on them and to expect it to be discharged only by letters (or equivalent) from the appropriate authority of Iran confirming non-returnability, together with copies of their applications to the relevant authority seeking re-documentation.
- Having set out the background material and the legal principles applicable to these cases, I turn to consider the core grounds of challenge and the issues raised by these cases.
Issue 1: Was there an unlawful failure (or is there any ongoing failure) to conclude these cases by removal or grant of leave?
- Before addressing the substance of this argument, there is a short preliminary point taken by the Defendant in Mr Hamzeh's case.
- Mr Hamzeh left the UK on an unknown date (though he maintains it was in January 2011) to go to the Netherlands. On 17 February 2011, he was returned to the UK by the Dutch authorities under Dublin II and again claimed asylum (refused on 4 April 2011). In light of these facts, the Defendant contends that his case was concluded for legacy purposes by his departure from the UK after his pre-5 March 2007 asylum claim, when he left voluntarily. His second asylum claim (made following his Dublin II return from the Netherlands) cannot alter this position since the Legacy Programme expressly covered only claims made before 5 March 2007 that had not been concluded. Ms Anderson submits that although later claims were dealt with by the same directorate as those dealing with the Legacy Programme, this does not entail that they fell under the Legacy Programme arrangements. This was the conclusion in Rahim (at [20] to [30]) based on the Defendant's clear and published position that a person's asylum claim is concluded if he either requests his passport from the Defendant for the purposes of travel or if he leaves the UK: see also section 104 of the 2002 Act and paragraph 34J of the Immigration Rules.
- Mr Turner contends that as a matter of discretion, a person who leaves can, upon their return be put back into the Legacy Programme; and this is what happened in Mr Hamzeh's case. He relies on letters dated 21 December 2011 stating that the case had been allocated to CAAU and the letter from the CAAU dated 17 April 2012 requesting passport photographs and other information (albeit that within 10 days of that letter, by letter dated 27 April 2012, the Defendant made clear that the later letter was sent in error and that his case was not being considered by CAAU, given his earlier voluntary departure from the UK).
- I cannot accept that these letters afford any basis for this contention. The mere fact that reference is made to CAAU or that a letter emanates from CAAU does not entail that discretion has been exercised to treat Mr Hamzeh's case as a Legacy Programme case, nor could it give rise to the expectation that it would be treated as one. The CAAU dealt with a wider class of case than simply Legacy Programme cases in any event. There is nothing in the letter of 21 December 2011, suggesting that Mr Hamzeh's case was being treated as a Legacy Programme case. To the contrary, the letter states that there were no records of an outstanding application in his case and in the absence of such evidence, the UKBA maintained the position that Mr Hamzeh had no basis of stay in the UK. His case was not in the category of unresolved cases and was not described as such.
- Accordingly Mr Hamzeh's case was concluded for the original Legacy Programme purposes under the published terms by his departure from the UK. This is a complete answer to his judicial review claim, but given that there are permission applications raising the removability and other issues, I turn to address the remaining issues.
- The Claimants contend that they are not currently removable as failed Iranian asylum seekers and/or have been treated as irremovable by the Defendant. They contend that there is a legacy policy that all cases must be concluded either by the grant of leave to remain or by removing an individual; and since the UK cannot currently enforce removal to Iran, there is accordingly a legal obligation to grant leave to remain under the legacy policy.
- I have dealt with the absence of any evidence to establish a binding commitment or policy adopted under the Legacy Programme requiring the conclusion of cases by either a grant of some form of leave or removal. No such promise or binding commitment has been established here.
- Although the Legacy Programme had as its intention, the sorting out of the backlog of cases by granting some sort of leave or removing individuals, that aim or rationale does not entail that a person neither granted leave nor removed has not yet had a "legacy decision" or a concluded case for these purposes.
- The purpose of the legacy programme was to review the backlog and to divide cases into those who should be given leave to remain from those who ought to be removed. Moreover, since the legacy programme was operational only and gave rise to no additional rights or expectations of the grant of leave, if leave was not granted following a review, removal could be expected. But as the court held in Che, there is a difference between a decision granting leave and a refusal of leave resulting in a removal decision and the commencement of the removal process. Inevitably, the process for removal is not instantaneous and may be lengthy. However, it begins with notification that leave has not been granted and that removal will therefore take place. At this point, an individual so notified has received a valid legacy decision: his case has been reviewed, it has been concluded that leave is not appropriate, so that he has had his legacy decision, and the removal process, starting with notification has begun. The mere fact that such an individual has not been removed (even after a number of years), does not alter this position and mean that his case under the legacy programme has not been concluded. Any delay in enforcing the individual's removal gives rise to no legal rights or unlawfulness – the individual is not only free to, but legally obliged, to leave the UK voluntarily.
- Nor does the fact that a refusal decision and a removal decision are separate and distinct (which I accept), alter this conclusion or lead to the conclusion that Che is wrongly decided. Mr Turner asserts that this is the case, but sets out no reasoning to support this assertion.
- In any event, the Defendant does not accept that Mr Hamzeh (or indeed any of the other Claimants) is as a matter of fact, undocumented. She relies, in particular on the fact that he travelled to Holland before February 2011, which would have required a valid travel document, rejecting as implausible his solicitor's assertion that he travelled by car and did not therefore require any travel documentation. Furthermore, although he maintained in his asylum screening interviews in 2003 and 2011 that he had left his Iranian passport and identity card in Iran, he submitted a lost property report to the Metropolitan police in June 2011, claiming to have lost his Iranian identity card in London. Moreover, adverse findings have been made about his credibility and honesty by the Asylum and Immigration Tribunal putting in issue his reliability.
- In any event, even if Mr Hamzeh is undocumented, the Defendant does not accept that this means his return to Iran is impossible, so that her refusal to grant leave is irrational or in error of law. She accepts that she cannot remove Iranians who do not have a travel document, but relies on the absence of evidence that Mr Hamzeh has no valid Iranian document together with the absence of any evidence of any genuine or systematic attempt to re-document himself, in concluding that there is accordingly nothing to prevent his voluntary return to Iran.
- There is no evidence from Mr Hamzeh in this case either regarding the question of documentation or confirming that he has made any genuine or systematic attempt to re-document himself. In the circumstances, I cannot see that the Defendant's position that Mr Hamzeh must leave voluntarily is anything other than a rational position for her to adopt. There is no arguable basis for impugning her decision on this basis.
- Finally, I cannot accept that it is appropriate for the Administrative Court to conduct a rolling review of the position in relation to removability, by reference to material not before the decision maker. The lawfulness of the Defendant's decisions are to be judged at the time they were made and on the basis of material available at that time.
Issue 2: Has there been a lawful legacy decision in these cases or does the fact that the Claimants claim to be 'irremovable' entitle them to leave under paragraph 395C or 353B of the Immigration Rules, or any other rule of law or policy?
- Alternatively, Mr Turner submits that it was a condition precedent to considering the factors in paragraphs 395C (or 353B) that removability should be considered, and any other construction of these paragraphs would (he submits) be entirely artificial.
- I cannot accept this argument. Removability is not a factor expressly identified in paragraph 395C or 353B of the Immigration Rules. These paragraphs assume a liability to removal, but require consideration by way of staying the Defendant's hand on removal, of relevant factors that amount to exceptional or compelling circumstances indicating removal should not take place. This does not convert removability into a condition precedent. Nor is it an artificial reading of these paragraphs.
- Removability is referred to in chapter 53 EIG; but there is a difference between considering the prospects of enforcing removal in the context of an assessment of all the relevant circumstances, and taking a decision to remove.
- Properly construed the guidance invites the decision-maker to consider whether a grant of leave is appropriate where other factors weigh in the claimant's favour and the prospects of removal are low. It does not require that where the prospects of removal are low, a grant should follow regardless of other factors. It is important to bear in mind that the factors identified in chapter 53 are simply that: factors. They are not exhaustive and they are not requirements to be met. Furthermore, failure to comply with UK immigration law by entering illegally, failing to maintain contact with the appropriate immigration authorities, failing to report or absconding, and working illegally or dishonesty in the conduct of immigration matters are all factors that are likely to weigh heavily against the grant of leave to remain on a discretionary basis. Repeated behaviour of this kind or lengthy absconding will "generally mean that an individual cannot benefit from exceptional circumstances, unless there are strong countervailing reasons in their favour". Accordingly, where an individual has achieved lengthy residence in the UK by non-compliance with UK immigration rules, that long residence is unlikely to weigh in favour of an individual seeking the discretionary grant of leave.
- In the alternative, Mr Turner submits that chapter 53 requires consideration of the prospects of enforcing removal and that it is accordingly a mandatorily relevant consideration. However, as already indicated, there is no UKBA policy that current difficulty in enforcing removal of an individual entitles them to leave to remain in the UK. Rather, the policy is that individuals are expected to leave the UK if they have no basis to stay here.
- Accordingly, removability is one of the factors that may be relevant in the overall decision-making, but it is not the only relevant factor. Nor is it a paramount factor. The way it is to be considered and addressed is dealt with further below.
Issue 3: Has the Defendant's failure to remove (or to take steps to re-document etc) the Claimants led to them being in a state of limbo that constitutes a disproportionate interference with their rights to family or private life under Article 8 of the Convention?
- Mr Turner submits that the consequence of the fact that the Claimants are un-documented Iranians and irremovable is that the failure to grant them leave will leave them in limbo, and that this amounts to a breach of their article 8 rights. In Khadir v. SSHD [2005] UKHL 39 at paragraph 4, Lady Hale observed that there may come a time when the prospects of the person ever being able safely to return, whether voluntarily or compulsorily are so remote that it would be irrational to deny him the status that would enable him to make a proper contribution to the community in the UK. The short answer to this point is that no positive evidence has yet been adduced by the Claimants (on whom the burden must rest) to establish that voluntary departure is so remote as to be practically impossible.
- Mr Turner also relies on the decision of the European Court of Human Rights in Kaftailova v. Latvia (application 59643/00), a case that concerned an applicant with very long and lawful residence in Latvia (and no evidence that she had any other nationality), who became stateless upon the dissolution of the USSR. However the facts of this case are so different from the present cases as to make it irrelevant for my purposes.
- The "limbo" argument was considered and rejected in Abdullah v SSHD [2013] EWCA Civ 42 as follows:
"19. I reject the submission that because the Secretary of State was at the date of the decision of the Upper Tribunal unable to enforce the return of the Appellant to Saudi Arabia, article 8 required her to grant him leave to remain. Article 8 does not confer a right to reside in the country of one's choice. The Appellant chooses to seek to reside in this country, but was not compelled to come here by any threat of persecution. Mr Jacobs accepted that if the Appellant could be returned, he could have no article 8 claim to remain here. That is doubtless because there was no evidence before the Upper Tribunal that he had established any personal or family life here. ….
22. I would dismiss this appeal on the ground that the Immigration Judge was entitled to conclude that at the date of his decision Article 8 did not require the Secretary of State to grant the Appellant leave to remain while seeking to secure his return to Saudi Arabia. If Article 8 was engaged, there could be only one answer to the balancing exercise required by Article 8.2, namely that the Secretary of State's refusal to grant leave to remain was justified by the need to maintain a system of sensible immigration control.
29. My second observation concerns the length of time for such inquiries before the "limbo" argument could conceivably come into play. I consider that, in this context, some assistance can be gained from the decisions concerning the legality of the detention of persons the Secretary of State seeks to deport while efforts are made to establish their nationality or to obtain the requisite documentation of their nationality. One of the factors which has been held to affect the period of detention which is lawful is whether the detained person has co-operated with attempts to obtain documentation: see, for example, R (MH) v SSHD [2010] EWCA Civ 1112 at [44] and [68(iii)], per Richards LJ. Similarly, the time after which the "limbo" argument can come into play may depend on the attitude of the individual concerned to efforts to establish his or her nationality or to obtain documentation."
- Very similar considerations apply in this case. Leaving aside the factual questions concerning the Claimants' identity documentation and removability, none of them came to the UK lawfully or compelled by any threat of persecution. All have remained here despite the refusal of leave and in circumstances where there is no evidence that they have established private and family life rights that would outweigh factors in favour of removal. In these circumstances, I cannot accept that the mere fact that their removal cannot currently be enforced, changes the balance so that such a decision amounts to a disproportionate interference of such rights under article 8 as they may establish. Article 8 does not confer the right to reside in the country of one's choice and there is nothing compelling any of these Claimants to remain here. The Defendant continues to hold the rational view that voluntary departure is still possible in each of these cases and accordingly, any state of limbo that they find themselves in is self- induced.
- There was a late attempt by Mr Turner to deploy an argument based on article 3 ECHR. This new argument raised in the skeleton argument served on 11 November 2013 for the first time, has not been properly particularised or supported by evidence, and is objected to by the Defendant. I decline to permit the Claimants at this very late stage to run it absent full examination of the factual basis that underpins it. In any event, given the high threshold for an Article 3 claim, and the absence of any supporting evidence, it is not arguable that a failure to grant leave to remain places these Claimants at real risk of destitution, contrary to Article 3.
Issue 4: Was there a failure to give adequate reasons and/or any legal obligation to state specifically that 395C and/or chapter 53 EIG is being applied and/or to have regard to materially relevant considerations, namely length of residence and/or removability?
- If the Claimants are wrong about what constitutes a conclusion for the purposes of a decision under the Legacy Programme, Mr Turner submits that the refusals to grant some form of leave in each of these cases cannot be properly construed as a lawful legacy decision for the following reasons: first, there is no express reference to chapter 53 EIG in the refusal letters, and no evidence that decision-makers were trained in or aware of it; secondly, there is no express reference to removability in the assessment of factors identified in the rules and guidance and/or there has been a failure to take account of removability as a mandatory, relevant consideration; thirdly, there has been a failure to have regard to length of residence and delay in processing the claims; and finally, in each case it is submitted that the ongoing failure to grant some form of leave to remain is unlawful and breaches each Claimant's Article 8 rights.
- The mere fact that an individual's case was being considered under the Legacy Programme did not mean that an immigration decision would follow. This would only arise if a fresh application had to be considered. Since the Legacy Programme was designed to clear the backlog of old asylum cases, many of which had already been considered, where no further applications or submissions were received, consideration under the Legacy Programme would simply lead to a confirmation that the individual in question continued to have no basis for leave to be granted, and should therefore be removed. In such a case, there would be no fresh immigration decision, and the requirement for reasons would be correspondingly reduced.
- Nevertheless, before a decision to remove a foreign national with no right to remain in the UK can be given, the non-exhaustive list of factors identified in paragraphs 395C or 353B of the immigration rules so far as applicable, have to be considered. These paragraphs do not confer an entitlement to any form of leave; rather they concern the question whether the defendant should "stay her hand" on further removal action by reference to what amount to "exceptional circumstances". In considering whether removal should be enforced, consideration is given to whether there is any basis for granting leave to remain in the UK outside the immigration rules by reference to the identified factors and the guidance in chapter 53 EIG. Unsurprisingly, consistently with such consideration being operated in a manner that does not undermine UK immigration law and policy, where an individual has failed to comply with UK immigration law (for example, by failing to maintain contact with the UKBA, working illegally, failing to report, being dishonest at any stage of the immigration process, overstaying, absconding) this is likely to weigh heavily against the individual in the chapter 53 EIG consideration; and by the same token, lengthy periods of residence in the UK achieved by non-compliance, is likely to weigh against the individual in this consideration.
- Chapter 53 EIT requires a "holistic" consideration of the relevant factors; no single factor is identified as an overriding or determinative factor, and the guidance expressly states that the discretion not to remove on the basis of exceptional circumstances will not be exercised on the basis of one factor alone.
- The guidance in chapter 53 addresses when removability is to be considered. Looking at the 2012 version of the chapter 53 guidance (as in force at the date of the decision in Mr Hamzeh's case), the decision-maker must address the factors outlined in "character", "compliance" and "length of time in the UK accrued for reasons beyond the migrant's control." Removability does not appear as a factor in "character" or "compliance". If having considered "character" and "compliance", those factors weigh against the individual, they will weigh against a grant of leave to remain in the exercise of the Defendant's discretion (weighing heavily in the case of "character" factors, and heavily in the case of "compliance" factors unless there are strong countervailing reasons in the individual's favour), consistently with UK immigration law and policy. Moreover, again, consistently with UK immigration law and policy, any current inability to enforce removal is unlikely to make any difference to that consideration.
- Provided those factors do not weigh against the individual, the decision-maker is required to go on to consider whether there has been significant delay by the UKBA, not attributable to the migrant, in deciding a valid application for leave to remain on asylum or human rights grounds, or whether there are reasons beyond the individual's control why they could not leave the UK after their application was refused. At this stage the decision-maker is required to assess the prospects of enforcing removal, and in a case where there has been significant delay by the UKBA that has contributed to a significant period of residence (six years or more identified in 2012 EIG) and the factors in "character" and "compliance" do not weigh against the individual, following an individual assessment of the prospect of enforcing removal, a grant of leave may be appropriate and it may therefore be appropriate not to enforce removal.
- The guidance does not limit the consideration of removability to considerations of the difficulty in enforcing removal and Mr Forshaw states that if the prospects of removal are good, then a grant of leave at this stage of the consideration is unlikely to be appropriate.
- More importantly, on any view the guidance does not say that if there are difficulties in relation to removal a grant of leave is appropriate. There is nothing in the rules or guidance that elevates removability into a factor that trumps other relevant considerations nor is removability a mandatory consideration that will change an otherwise negative assessment of an individual's case into a positive assessment. This is reinforced by the training slide in relation to the individual assessment of the prospect of enforcing removal, which makes clear (Core Bundle 2/F pg 75):
"However, a holistic assessment is still required. It will not be appropriate to grant leave on the sole basis that it is not currently possible to enforce return to the applicant's country of origin."
- Mr Forshaw states that in cases where notwithstanding a current inability to enforce removal, the Secretary of State concludes that the removal of the individual is still appropriate, the Secretary of State will nevertheless look to promote voluntary departure. This is both rational and reasonable in the circumstances. Moreover, a current inability to enforce removal is something that may change at short notice, so that no assumption can be made that there will be no change of circumstances in relation to removal over time.
- Accordingly, the question of removability and the stage at which it is to be considered and assessed is dealt with in chapter 53 EIG. But courts have repeatedly emphasised that the factors listed in paragraphs 395C and 353B and chapter 53 are not requirements to be met, and nor are they an exhaustive list. The Defendant submits that there is no requirement for any express reference to these paragraphs or this guidance in order for a decision to be a lawful decision. I accept this to be the case and that it is not contradicted by the decision in Mohammed. The judgment in Mohammed did not hold that there had to be express reference to chapter 53 for a decision to be lawful; rather it is an example of a case in which, on its facts, the court held that the decision-maker had not had sufficient regard to the guidance. For so long as the guidance is considered and applied there is no requirement to make express reference to it or to each factor listed.
- So far as the reasons challenge in this case is concerned, the jurisdiction to quash a decision on public law grounds only exists where there has in fact been an error of law. As was explained in Westech College [2011] EWHC 1484 (Admin) at [29], the court should not intervene to grant judicial review, simply because the reasons given may disclose an error of law, unless the perceived deficiency in reasoning denotes that the decision is flawed by error of law. Accordingly, insofar as the reasoning in any of the refusal decisions in these cases is deficient, unless the defective reasoning indicates or demonstrates that there would have been a different outcome (so that the decision is in error of law), this court should not intervene.
- The remaining issue pursued by these Claimants is based on Wednesbury unreasonableness. They maintain that the Defendant failed, or failed adequately, to take account of the fact that they had long residence in the UK and the delay in determining their claims, and that accordingly there was a failure to apply the provisions of paragraph 395C (or 393B as appropriate) as expanded on in chapter 53 EIG and a failure to take account of relevant considerations. The Defendant, by contrast, says all factors were considered holistically and a conclusion was reached, which was well within the range of possible conclusions in these cases. Length of residence is only one of the factors to be taken into account. The Defendant maintains in each case, it was taken into account, but there were other factors that outweighed the length of residence built up by the individual in the UK. Most significantly, these Claimants all had weighty non-compliance and deception issues, many had absconded in an attempt to frustrate removal, so that long residence was not the positive factor contended for by them.
- In these cases, no evidence has been adduced that any factors such as connections with the UK or domestic circumstances that might have weighed in the individual's favour and required consideration, were left out of account. The sole factor (apart from removability) relied upon in this regard is length of residence. In each case it is submitted that the length of residence between four and 10 years would by itself ordinarily justify the grant of leave to remain. However, length of residence is considered in the context of compliance with UK immigration laws. Where an individual has never had leave to enter, has his asylum claim refused and an appeal dismissed and thereafter fails to comply with reporting restrictions or absconds, the length of residence resulting from deliberate evasion of the authorities is most unlikely to weigh in that individual's favour of a grant.
- The relevance of delay in the context of residence must also be considered. Although culpable delay by the Defendant is to be taken into consideration in addressing residence and other factors in paragraph 395C/353B, there is no rational basis for treating residence built up by an individual who absconds in the same way, nor on its proper construction does the guidance require the decision maker to do so. This point was addressed briefly in Mohammed at paragraph 37:
"For my part, I read the passage starting "In addition to the foregoing" as forming part of the sub-heading "Residence accrued as a result of delay by UKBA". Nevertheless, I agree with Burton J's view (at [13] of Hakemi) that the period of years identified in the last bullet point refers simply to the passage of time (and thus the period of residence in question), and not particularly to a period of culpable delay on the part of the UKBA."
- Accordingly despite Mr Turner's submissions to the contrary, both the wording and the spirit of the guidance in chapter 53 EIG, mean that periods of absconding do not count in an individual's favour as part of any significant period of long residence.
- Furthermore, in so far as the Claimants contend that but for unwarranted delay in each case, decisions more favourable to each of them would have been made and accordingly the Defendant is required to give them the benefit of that more favourable decision, I cannot accept this argument. The foundation for it is Rashid v. SSHD [2005] EWCA Civ 744, but this case establishes that the Defendant is entitled to apply policy applicable as at the date of the decision under challenge; that the court is concerned not with maladministration, but only with illegality, so that if maladministration produces a decision that is unlawful this can be the subject of a successful challenge, but not otherwise. Accordingly, there is no principle of administrative law that if the Defendant had made a decision earlier resulting in a more favourable outcome for an individual, then whatever the changed circumstances may be when the decision was actually made, that more favourable decision must now be made.
- Against that background, I turn to address the specific decisions in each case.
Mr Hamzeh's claim
- Mr Hamzeh arrived in the UK, claiming asylum on 30 January 2003. His asylum application was refused on 3 February 2003, and his appeal against that refusal was dismissed on 24 September 2003. He applied for but was refused permission to appeal and he became appeal rights exhausted on 26 January 2004. He failed to report and was deemed an absconder from 19 May 2004. In July 2010 CRD contacted Mr Hamzeh stating that his case was being considered under the Legacy Programme and requesting photographs. He responded by sending photographs in December 2010. He left the UK voluntarily on a date that is unknown, but he suggests in January 2011, but he was returned to the UK by the Netherlands under the terms of the Dublin II regulation. He claimed asylum for a second time thereafter, and this was dealt with promptly and refused on 4 April 2011, and his claim was certified as clearly unfounded. He has never challenged that decision.
- The date of the relevant decision challenged in his judicial review application was 15 January 2013. The decision was supplemented by a further decision dated 28 March 2013, which took account of the developing case law on Article 8. The later decision did not address paragraph 353B, but stated that it should "be read in conjunction with the letter dated 15 January 2013".
- The decision of 15 January 2013 gave express consideration to the "exceptional circumstances" factors under paragraph 353B of the immigration rules and expressly applied the guidance in chapter 53 EIG (in force as at 7 January 2013).
- Mr Hamzeh had not been convicted of any criminal offences while in the UK so that there was nothing recorded against him in relation to character.
- So far as compliance was concerned, this factor weighed heavily against him: he entered the UK illegally; his asylum application was rejected and he was found to be an untruthful witness; he failed to report during 2004; he absconded for a period of six years and four months. The Defendant also relies on dishonesty by Mr Hamzeh in that during his asylum screening interview in February 2011, he stated that he was not in possession of his passport or national identity card (or birth certificate), having left all documents in Iran; yet he managed to leave the UK and travel to the Netherlands but has provided no satisfactory explanation of how he was able to travel, given his assertion that he had no travel documents. The statement in relation to his birth certificate is inconsistent with the fact that he exhibited his Iranian birth certificate during his original appeal in 2003. Further dishonesty is relied on in relation to Mr Hamzeh's submission of a lost property report dated 16 June 2011, where he claimed to have lost his Iranian identity card in London, yet he claimed subsequently never to have been in possession of an Iranian identity card.
- So far as a consideration of the length of time in the UK accrued for reasons beyond the migrant's control after their human rights or asylum claim has been submitted, or refused, this was also expressly considered. This factor does not assist Mr Hamzeh because once his period of absconding is removed from consideration, his period of residence in the UK at the time of the decision was little more than three and a half years and this is not regarded as significant because it is less than the period of six years identified in the guidance.
- In any event, the decision-maker must first consider character and compliance factors, and only considers residence and delay if factors under character or compliance do not weigh against the applicant. Inevitably, factors under compliance weighed heavily against Mr Hamzeh in this case for the reasons set out above.
- Further, there was little if any delay by UKBA in deciding Mr Hamzeh's application for asylum: his 2003 asylum application was decided within four days, and his 2011 asylum application was decided within 15 days. The fact that there may have been some delay in responding to the pre-action protocol letter in these proceedings is not relevant for these purposes.
- The question of removability did not arise under the guidance in Mr Hamzeh's case because compliance factors weighed against him. Furthermore, there was no relevant delay by UKBA in his case and nor did he establish residence in the UK of more than six years, having discounted his period of absconding. But in any event, the letter concludes by reminding Mr Hamzeh that the onus was on him to leave the UK once his asylum claim had been refused and concluded, rather than being on the UKBA to enforce removal. The decision-maker stated, finally, that there were no exceptional circumstances that rendered his removal inappropriate.
- In circumstances where no evidence (still less evidence of the kind identified in the limbo policy dealt with in Ku) has been provided by Mr Hamzeh to establish positively that he cannot return to Iran on a voluntary basis, (and in light of the positive evidence that he travelled to the Netherlands, is in possession of a birth certificate, and is in regular contact with his family in Iran) it is not arguably irrational or unlawful for the Defendant to conclude that his removal is and remains appropriate despite a current inability to enforce removal, on the basis that he can and should depart voluntarily.
- Accordingly, I am satisfied that the decision-maker in this case considered the relevant factors in paragraph 353B, applied the chapter 53 guidance and weighed length of residence and delay appropriately in coming to a concluded decision that no grant of leave could be justified in Mr Hamzeh's case and that accordingly, removal was appropriate.
- Although not pleaded as a ground of claim in this case, Mr Turner challenges this decision on the ground, additionally that there was no express consideration given to the fact that Mr Hamzeh has had poor health. The only evidence of poor health before the Defendant at the date of the 15 January 2013 decision is set out under the heading "non-protection based submissions: other ECHR articles". This evidence was considered and addressed, but it was noted that Mr Hamzeh had not produced further medical evidence showing that he was undergoing treatment once again, or that he would ever need any continuing treatment, or that a failure to receive treatment would reduce his life expectancy. Given this conclusion, the challenge to the Defendant's decision on this basis cannot be sustained.
- Finally, so far as Article 8 is concerned, this claim is wholly un-particularised and is unsupported by any evidence. In particular, there is no evidence to establish family life in the UK, nor any evidence to demonstrate the extent of any private life established in the UK. The claim amounts, in effect, to a bare assertion that after 10 years of residence here, Mr Hamzeh must have established a private life, so that his removal would be disproportionate. I cannot accept this argument. Given his illegal entry, his sustained and repeated non-compliance with the UKBA, and his dishonesty in relation to the immigration authorities, I can see no arguable error of law in the Defendant's conclusion that his removal from the UK is a proportionate means of achieving the legitimate aim of immigration control. This was not a finely balanced case.
- For all these reasons, the application for judicial review in Mr Hamzeh's case fails and is dismissed.
Mr Abdullahi's claim
- Mr Abdullahi arrived in the UK on 28 December 2005 and claimed asylum the following day. His asylum application was refused on 17 February 2006 on the basis that the discrepancies in his account "cast serious doubt over (his) personal credibility and over (his) claim in its entirety". His appeal against that refusal was dismissed on 26 May 2006, the immigration judge finding him not to be credible, and he became appeal rights exhausted on 12 July 2006.
- On 20 April 2009, he made fresh representations claiming for the first time to be an Iraqi (rather than an Iranian) national. On 26 November 2009 CRD responded stating that his case was being dealt with under the Legacy Programme. On 10 February 2011, the Defendant made a decision refusing his claim for leave, rejecting as not credible his new claim to be Iraqi and rejecting the ID documents submitted by him as not genuine. The Defendant considered whether leave ought to be granted under paragraph 395C of the immigration rules and expressly considered his residence in the UK under that paragraph.
- With effect from July 2010 Mr Abdullahi began reporting to the UKBA having failed to comply with immigration control and reporting restrictions before that time.
- By letter dated 5 July 2011 Mr Abdullahi submitted further representations, this time on the basis of Iranian nationality. These were refused as not amounting to a fresh claim by letter dated 14 March 2012. The Defendant refused to grant leave to remain, concluding that it was not possible to determine the authenticity of documents submitted by Mr Abdullahi, particularly in circumstances where his credibility had been undermined and there were discrepancies in his account and in the documents he had submitted.
- By letter before action dated 28 May 2012, Mr Abdullahi's solicitors asserted that there had been a failure to consider his case under the Legacy Programme and that he had a legitimate expectation that he would be granted indefinite leave to remain on the basis of his long residence in the UK. By letter dated 30 May 2012, the Defendant responded stating that his case, including consideration under paragraph 353B of the immigration rules had been fully considered in the decision of 14 March 2012.
- Permission to apply for judicial review was initially refused on the papers on 26 November 2012. At a renewed oral permission hearing, permission to apply for judicial review was granted on the ground that the Defendant had "failed to have adequate regard to the length of residence in the decision of 14 March 2012" and Mr Abdullahi was also given permission to amend his grounds to raise the issue of removability to Iran, to be dealt with as a rolled up hearing with Mr Hamzeh's case.
- The date of the relevant decision challenged in his judicial review application is 14 March 2012. (Mr Abdullahi is significantly out of time to challenge the decision of 11 February 2011, and no application to do so has been made on his behalf – in any event, it was superseded by the later decision). The version of the chapter 53 guidance in force on 12 March 2012, was in very similar terms to that applicable to the decision in Mr Hamzeh's case.
- Mr Abdullahi had not been convicted of any criminal offences while in the UK so that there was nothing recorded against him in relation to character.
- So far as compliance was concerned, this factor weighed heavily against him: he entered the UK illegally; his asylum application was rejected and serious doubt was cast over his personal credibility; the immigration judge who heard his appeal found him not to be credible and found that he had come to the UK to seek a better life; he absconded in August 2006 and did not resume reporting until July 2010 (this latter date is expressly referred to on page 5 of 7 of the consideration, albeit that in the final paragraph of the document there is a suggestion that Mr Abdullahi had failed to comply with immigration control and reporting restrictions throughout his residence); there were further failures to report between 9 August 2012 and 6 September 2012. The Defendant also relies on the fact that Mr Abdullahi submitted an Iraqi identity document that was concluded not to be genuine; that he then abandoned his claim to be Iraqi; thereafter making representations on the basis of Iranian nationality and submitting further documents that were not accepted as genuine.
- So far as a consideration of the length of time in the UK accrued for reasons beyond the migrant's control after their human rights or asylum claim has been submitted, or refused, this was also expressly considered. This factor does not assist Mr Abdullahi because once his period of absconding is removed from consideration, his period of residence in the UK at the time of the decision was 3 years and a month, and could not be regarded as significant because it is less than the period of six years identified in the guidance.
- In any event, the decision maker must first consider character and compliance factors, and only considers residence and delay if factors under character or compliance do not weigh against the applicant. Inevitably, factors under compliance weighed heavily against Mr Abdullahi in this case for the reasons set out above.
- In any event, there was little if any delay by UKBA in deciding Mr Abdullahi's application for asylum: his 2005 asylum application was decided within two months; and to the extent relevant, the defendant was entitled to conclude that neither the delay in responding to the April 2009 representations (one year and 10 months), nor the eight month delay in considering his July 2011 submissions, amounted to significant delay for these purposes. In any event since his residence, discounting the period that he had absconded, was only three years and one month at the date of the decision, delay by the UKBA did not weigh in his favour.
- The question of removability did not arise under the guidance in Mr Abdullahi's case because compliance factors weighed against him. Furthermore, there was no relevant delay by UKBA in his case and nor did he establish residence in the UK of more than six years, having discounted his period of absconding.
- As with Mr Hamzeh, in circumstances where no evidence (still less evidence of the kind identified in the limbo policy dealt with in Ku) has been provided by Mr Abdullahi to establish positively that he cannot return to Iran on a voluntary basis, it is not arguably irrational or unlawful for the defendant to conclude that his removal remains appropriate despite a current inability to enforce removal, on the basis that he can and should depart voluntarily. In this regard, the evidence suggests that Mr Abdullahi has a large family in Tehran, including parents, many siblings and a maternal uncle, but has provided no explanation as to why his family cannot assist him in obtaining relevant documentation; nor is there any evidence that he made any effort to contact the Iranian Embassy in London before its closure or any Iranian missions in nearby countries.
- Mr Turner submits that any paragraph 353B consideration in this letter is fundamentally flawed by the factual error in relation to compliance with immigration control and reporting restrictions. However, I am satisfied that the letter read as a whole had the correct factual position in relation to his reporting well in mind, as demonstrated by the acknowledgement on page 5 of the fact that he had absconded and failed to maintain contact with UKBA until July 2010.
- Accordingly, the relevant factors in paragraph 353B were expressly considered. Although no express reference to chapter 53 EIG was made in the letter, there is no requirement for such express reference and I am satisfied having considered the letter as a whole that the decision-maker applied the chapter 53 guidance and weighed length of residence and delay appropriately in coming to a concluded decision that no exceptional grant of leave could be justified in Mr Abdullahi's case and that accordingly, removal was appropriate.
- Although not pleaded as a ground of claim, Mr Turner submits that the continued failure to grant some form of leave to remain is unlawful and breaches Mr Abdullahi's protected rights under article 8. This claim is wholly un-particularised and unsupported by evidence. Mr Abdullahi underwent an Islamic marriage ceremony in May 2011, but his relationship with Ms Walton broke down in March 2012. He has provided no evidence to establish family life in the UK, nor any evidence to demonstrate the extent of any private life established in the UK. Given his illegal entry, his sustained and repeated non-compliance with the UKBA, and the evidence of his dishonesty in relation to the immigration process, I can see no arguable error of law in the Defendant's conclusion that his removal from the UK is a proportionate means of achieving the legitimate aim of immigration control.
- For these reasons, this claim fails and is dismissed to the extent that permission has been granted; so far as the remaining grounds of challenge are concerned, they are unarguable and permission is refused.
Mr Nejad's claim
- Mr Nejad arrived in the UK, claiming asylum on 17 of February 2003. He was an unaccompanied minor at that time and accordingly he was granted extended leave to remain on 25 March 2003 until 12 June 2005, although his asylum claim was refused. On 10 June 2005 he made an application for further leave which was refused on 27 April 2007. His appeal against that refusal was dismissed on 3 July 2007, the immigration judge finding that his account was "false and untrue". His appeal rights were exhausted on 14 August 2007.
- On 20 September 2007 he failed to report and made no further contact with the defendant until two and a half years later, when on 11 February 2010, he submitted an application for voluntary return. His further submissions on 10 May 2010 were refused by letter dated 18 August 2010. In that letter express consideration was given to the grant of leave outside the rules under paragraph 395C of the immigration rules with express consideration being given to his length of residence in the UK.
- He failed to report again in February 2011 and did not resume reporting until 17 November 2011 when he was encountered during an enforcement operation and it was noted that he was "a failed asylum seeker with appeal rights exhausted and from a non-removable country at this time". It was also noted that he said "he had not reported as he was trying to earn money working illegally for a friend as a labourer and that his solicitor was taking his case to the High Court."
- By pre-action letter dated 11 October 2011 Mr Nejad's solicitors alleged that the failure to make a decision under the Legacy Programme was unlawful. By letter dated 22 November 2011, the Defendant responded that his case had been transferred from CRD to CAAU and that there were no outstanding submissions or applications in his case and the Defendant considered that he was here with no basis of stay in the UK. His application for permission to seek judicial review, lodged on 3 April 2012 was refused on the papers on 31 July 2012, but at a renewed oral application for permission, the application was directed to be heard as a rolled up hearing at the same time as that of Mr Hamzeh.
- The date of the relevant decision challenged in his judicial review application was 18 August 2010. Given that the generic arguments relating to removability and whether there has been a failure to conclude this case under the Legacy Programme have been rejected, the challenge to the decision of 18 August 2010 is far too late, and no good reason for the delay has been advanced. Permission is accordingly refused on this basis.
- In any event, the claim is unarguable on its merits. At the date of the relevant decision paragraph 395C of the immigration rules applied and the version of chapter 53 EIG in force at that date made clear that the policy of the Defendant was "to remove illegal in migrants from the UK unless it would be a breach of the Refugee Convention or the ECHR or there are compelling reasons, usually of a compassionate nature, for not doing so in an individual case." (emphasis added). The guidance required a consideration of relevant factors to be taken as a whole, not individually, and expressly stated that length of residence may not of itself be a factor but it might when combined with age and strength of connections with the UK.
- There was express consideration given to the factors in paragraph 395C of the immigration rules at page 7 of 8 of the consideration, including: Mr Nejad's age at 23 and the absence of any criminal record in his case; at the time of the decision Mr Nejad had been in the UK for seven years and six months but two years and four months of that period had been as an absconder which led to the conclusion that his length of residence was not sufficiently compelling to justify allowing him to remain in the UK; his non-compliance with reporting restrictions was referred to; as was the fact that his personal and domestic circumstances were not regarded as sufficiently compelling to justify allowing him to remain in the UK.
- Although no express reference to chapter 53 EIG is made in the letter, there is no requirement for such express reference. In any event, I am satisfied having considered the letter as a whole and the repeated reference to whether factors in Mr Nejad's case are sufficiently compelling to justify allowing him to remain in the UK, that there was consideration by the decision-maker of the chapter 53 guidance. Length of residence and delay were weighed appropriately in coming to a concluded decision available on the facts, that no grant of leave could be justified in Mr Nejad's case.
- The question of removability did not arise under the guidance in Mr Nejad's case because he had never had an application outstanding for over two years; the delay in deciding his application dated 27 April 2007 is not regarded as significant in this context and there is no evidence that he was making progress enquiries during this time, having absconded for most of it. There is no evidence that delay led to Mr Nejad building up significant private or family life, or that it resulted in considerable hardship. Moreover, the Defendant is entitled to consider that the factors in "personal history" weigh heavily against Mr Nejad including his dishonesty, his absconding, the fact that he worked illegally, and his failure to report. Further, in his case, there was no significant delay in deciding an in-time application for leave, so that although a period of 4 to 6 years residence might in general be considered significant, there is nothing in his particular circumstances to justify such a conclusion.
- Again in Mr Nejad's case, no evidence (still less evidence of the kind identified in the limbo policy dealt with in Ku) has been provided by him to establish positively that he cannot return to Iran on a voluntary basis. As the Defendant submits, at the date of the decision, the Iranian Embassy in London was open, but there is no contemporaneous evidence that he made any attempts to re-document himself. He has stated that he left his birth certificate in Iran with his parents, but despite regular contact with his mother, he has never asked her to send him his birth certificate and has provided no explanation as to why his family in Iran could not assist him in obtaining travel documentation. In a witness statement dated 1 November 2013, he has indicated a willingness to attend an emergency travel document interview if requested to do so. Accordingly, in these circumstances, it is not arguably irrational or unlawful for the Defendant to conclude that his removal remains appropriate despite a current inability to enforce removal, on the basis that he can and should depart voluntarily.
- Finally, the article 8 ground raised in this case, for the first time in the skeleton argument is once again wholly un-particularised and unsupported by any evidence. It too is unarguable.
- For all these reasons, this claim is unarguable and permission is accordingly refused in the case of Mr Nejad.
Mr Jaffar's claim
- Mr Jaffar arrived in the UK and claimed asylum on 18 December 2006. His asylum claim was refused on 22 June 2007, but he was granted discretionary leave to remain as a minor until 12 April 2008. On 10 April 2008 he made an application for leave to remain on asylum/protection based grounds. He was interviewed on 20 May 2011 for the purpose of his further leave application and this was refused on 4 June 2011. His appeal against the refusal of his application for leave was refused on 20 July 2011 (the Immigration Judge finding his account to be "fabricated" and "untrue") and an application for permission to appeal to the Upper Tribunal was refused on 9 August 2011. His solicitors wrote a letter before claim dated 28 November 2011 and a letter dated 22 December 2011 confirmed that his case had been allocated to the CAAU and that in the absence of outstanding further submissions or an outstanding application, the UKBA maintained the position that he had no basis of stay in the United Kingdom.
- He sought judicial review by an application lodged on 31 January 2012, and this was refused on paper by a decision dated 21 June 2012. His renewal application was adjourned and listed to be heard as a rolled up hearing at the same time as the substantive judicial review claim in Mr Hamzeh's case.
- The date of the relevant decision challenged in his judicial review application was 4 June 2011. Given that the generic arguments relating to removability and whether there has been a failure to conclude this case under the Legacy Programme have been rejected, the challenge to this decision (which was the subject of an appeal to the FTT) is four months out of time, and no good reason for the delay has been advanced. Permission is accordingly refused on this basis.
- In any event, the claim is unarguable on its merits. At the date of the relevant decision, paragraph 395C of the Immigration Rules applied and the version of chapter 53 EIG in force at that date made clear that the policy of the Defendant was "to remove illegal in migrants from the UK unless it would be a breach of the Refugee Convention or the ECHR or there are compelling reasons, usually of a compassionate nature, for not doing so in an individual case." (emphasis added). The guidance required a consideration of relevant factors to be taken as a whole, not individually, and expressly stated that length of residence may not of itself be a factor but it might when combined with age and strength of connections with the UK.
- There was express consideration given to the factors in paragraph 395C of the immigration rules at page 5 and 6 of the consideration, including: Mr Jaffar's age at 20 (no longer an unaccompanied minor), his arrest for disorderly conduct and inconsistent accounts he had given in this respect, the strength of his connections in the UK, and his personal history and domestic circumstances. Express consideration was given to his length of residence in the UK: at the time of the decision Mr Jaffar had been in the UK for four and a half years (though one year and ten months of that period was as a child and the Immigration Judge dealing with his appeal held that the vast majority of his formative years had been spent in Iran so that there was no reason he could not return there) but this was not regarded as sufficiently compelling to justify leave to remain.
- Although no express reference to chapter 53 EIG is made in the letter, there is no requirement for such express reference; but in any event, consideration of the letter as a whole and the repeated reference to whether factors in Mr Jaffar's case are sufficiently compelling to justify allowing him to remain in the UK, indicate consideration and application of chapter 53 EIG. Length of residence was considered, and although four to six years could be considered significant where a delay by UKBA meant that an individual had built up significant private or family life in the UK or suffered a significant hardship, there was no evidence of either in his case. Delay was weighed appropriately in coming to a concluded decision that no grant of leave could be justified in Mr Jaffar's case.
- The question of removability does not arise under the guidance in Mr Jaffar's case because he did not meet the criteria for the reasons set out in the Defendant's written submission in relation to his case.
- In any event Mr Jaffar has produced no evidence (still less evidence of the kind identified in the limbo policy dealt with in Ku) to establish positively that he cannot return to Iran on a voluntary basis. As the Defendant submits, at the date of the decision, the Iranian Embassy in London was open, but there is no contemporaneous evidence that he made any attempts to re-document himself. He has stated that he left his identity document in Iran and has lost contact with his family, but has provided no evidence to support these statements, or the inference that there is no contact whatsoever in Iran who can assist him. Moreover, he has provided no evidence of efforts to contact the Ministry of Interior in Iran or nearby Iranian missions to find out what positive steps can be taken to redocument himself.
- Accordingly, in these circumstances, it is not arguably irrational or unlawful for the Defendant to conclude that his removal remains appropriate despite a current inability to enforce removal, on the basis that he can and should depart voluntarily.
- Finally, the article 8 ground raised in his case is once again wholly un-particularised and unsupported by any evidence. The Defendant considered Mr Jaffar's article 8 rights carefully and fully in the decision of 4 June 2011, and her conclusion that his removal would be proportionate in the circumstances was one she was entitled to reach on the facts of his case and cannot be impugned.
- For all these reasons, this claim is unarguable and permission is accordingly refused in the case of Mr Jaffar.
Mr Ahmadi's claim
- Mr Ahmadi arrived in the UK, claiming asylum on 4 December 2006. His asylum application was refused on 25 January 2007, and his appeal against that refusal was dismissed on 8 May 2007 (the Immigration Judge finding him to be a "wholly unreliable witness" and rejecting as fabricated his account). He became appeal rights exhausted on 20 November 2007. He failed to report on 22 October 2007, but served further submissions on 24 October 2008 (and again on 16 March 2010) and resumed reporting on 12 March 2010. His further submissions were refused with no right of appeal on 27 September 2010, in part on the basis that the documents he submitted were not accepted as genuine. His article 8 rights were considered, as was paragraph 395C but leave to remain was refused. This decision was not challenged.
- On 6 December 2009 Mr Ahmadi was arrested on suspicion of kidnapping and false imprisonment. He filed further submissions on 24 January 2011, and these were refused by the Defendant on 15 June 2011.
- The decision of 15 June 2011 is challenged in his judicial review application lodged on 19 September 2012. Given that the generic arguments relating to removability and whether there has been a failure to conclude this case under the Legacy Programme have been rejected, the challenge to the decision of 15 June 2011 is significantly out of time, and no good reason for the delay has been advanced. Permission is accordingly refused on this basis.
- In any event, the claim is unarguable on its merits. At the date of the relevant decision, paragraph 395C of the immigration rules applied and the version of chapter 53 EIG in force at that date made clear that the policy of the Defendant was "to remove illegal in migrants from the UK unless it would be a breach of the Refugee Convention or the ECHR or there are compelling reasons, usually of a compassionate nature, for not doing so in an individual case." (emphasis added). The guidance required a consideration of relevant factors to be taken as a whole, not individually, and expressly stated that length of residence may not of itself be a factor but it might when combined with age and strength of connections with the UK.
- There was express consideration given to Mr Ahmadi's age (at 20 he was no longer an unaccompanied minor); his length of residence of four and a half years at the date of the decision, but two years and five months of that period were spent as an absconder; factors in his personal history weighed against him, including deception, his illegal entry, his absconding and non-compliance, his arrest for criminal offences, and the submission of documents regarded as not genuine.
- Although no express reference to chapter 53 EIG is made in the letter, there is no requirement for such express reference; but consideration of the letter as a whole indicates application by the decision-maker of chapter 53 EIG. Length of residence and delay were weighed appropriately in coming to a concluded decision that no exceptional grant of leave could be justified in Mr Ahmadi's case.
- The question of removability did not arise under the guidance in Mr Ahmadi's case because he did not meet the criteria for it to be considered for the reasons set out in the Defendant's written submission on this question.
- In any event Mr Ahmadi has produced no evidence (still less evidence of the kind identified in the limbo policy dealt with in Ku) to establish positively that he cannot return to Iran on a voluntary basis. The Defendant is entitled to be sceptical about this claim given that on his own case he arrived in the UK in possession of an Iranian identity document which he maintains he gave to the Home Office when he first claimed asylum. In any event, he has family in Iran but has provided no evidence to show why they cannot assist him in obtaining further documentation. Moreover, he has provided no evidence of his own efforts to contact the Ministry of Interior in Iran or nearby Iranian missions to find out what positive steps can be taken to redocument himself, despite his indication of willingness in his witness statement to cooperate in the process.
- Accordingly, in these circumstances, it is not arguably irrational or unlawful for the Defendant to conclude that his removal remains appropriate despite a current inability to enforce removal, on the basis that he can and should depart voluntarily.
- Finally, the article 8 ground raised in his case is once again wholly un-particularised and unsupported by any evidence. It is also unarguable.
- For all these reasons, this claim is unarguable and permission is accordingly refused in the case of Mr Ahmadi.
Conclusion
- For completeness I note that a large number of documents were put before the court and reference was made to many of them. Further, a large number of additional points were made in the various skeleton arguments and written submissions or referred to by Mr Turner during the hearing. I have in this judgment sought to deal with what I consider to be the principal points raised. The Claimants can however be assured that I have carefully considered all the other matters and documents referred to on their behalves.
- For all these reasons, despite the comprehensive submissions made by Mr Turner on behalf of each of the Claimants in this case, these applications fail and are dismissed.
