Ms. D. Gill :
Introduction
- This is another "legacy" case. The claimant challenges a decision of the defendant of 11 June 2012, maintained by a later decision of 2 May 2013, to grant him 3 year's discretionary leave to remain (DLR) until 10 June 2015. The claimant asserts that the defendant's failure to grant him indefinite leave to remain (ILR) was unlawful.
- The defendant's so-called "legacy programme" has been described in detail in several judgments; for example, Hakemi & Others v. Secretary of State for the Home Department [2012] EWHC 1967 (Admin) (Burton J); Geraldo & Others v. Secretary of State for the Home Department [2013] EWHC 2763 (Admin) (King J); Hamzeh & Others v. Secretary of State for the Home Department [2013] EWHC 4113 (Simler J); Jaku & Others v. Secretary of State for the Home Department [2014] EWHC 605 (Admin) (Ouseley J); and Mohammed v. Secretary of State for the Home Department [2014] EWHC 98 (Admin) (Lewis J). Subsequent references to Mohammed will be to this judgment of Lewis J unless another judgment is specifically mentioned.
- In brief, the legacy programme was introduced by the Secretary of State in 2006 in order the deal with a very large backlog of asylum and human rights cases where the applications had been made before 5 March 2007 but had not been resolved by removal or the grant of leave to remain. These cases were transferred to a specially constituted team called the Case Resolution Directorate (CRD) which dealt with the cases under the programme until July 2011 when the residue of cases then remaining (some 116,000 cases) were transferred to the Case Assurance and Audit Unit (CAAU). In reviewing the cases in the legacy programme, the CRD (and later the CAAU) considered whether to remove an individual by considering the relevant rule in the Immigration Rules. The relevant rule was para 395C until 12 February 2012. On 13 February 2012, para 395C was replaced by para 353B which was more restrictive as to the circumstances in which caseworkers may conclude that removal was no longer appropriate. In the instant case, nothing turns upon the precise wording of para 395C as compared with para 353B which makes it unnecessary to set out their provisions.
- Chapter 53 of the Enforcement Instructions and Guidance (EIG), which sets out the guidance to caseworkers when considering para 395C/353B (as the case may be), changed over time to reflect not only the change in the Rule but also a change in the defendant's policy as to the type and duration of leave that is granted if a caseworker decided that removal was no longer appropriate pursuant to para 395C (prior to 13 February 2012) or para 353B (from and after 13 February 2012). In summary:
i) If the decision was made prior to 20 July 2011, the chapter 53 guidance did not specify the period of leave that could or should be granted. However, the practice was to grant ILR (97% of cases). More limited grants of leave (DLR and humanitarian protection) were made to those who qualified on the basis of "rights-based" criteria (Geraldo at [55]).
ii) If the decision was made during the period from and including 20 July 2011 up until 8 July 2012, the chapter 53 guidance provided for a grant of DLR for a period of three years (Geraldo at [67]).
iii) If the decision was made on or after 9 July 2012, the chapter 53 guidance provided for a grant of DLR for a period of 30 months (Geraldo at [69]). There were two exceptions when, in the exercise of the Secretary of State's discretion to correct "a historic injustice arising from past illegality" (Geraldo at [70]), the practice of granting DLR for 30 months may not be applied and the type and/or duration of leave that is granted may be different, as follows:
a) where the defendant had made a written commitment, in effect a promise, to the individual concerned that his case would be considered before 20 July 2011 but had failed to do so; and
b) where an erroneous adverse decision had been made before 20 July 2011 so that when the decision was re-taken on the same evidence the same type of leave should be granted as would have been granted if the decision had been correctly taken in the first place.
- The claimant relies upon the second exception just described (hereafter the second exception) in relation to ground 1 (see below).
An overview of the claimant's case
- The claimant's grounds have been amended, "reformulated" and then "consolidated". Two of the claimant's grounds (see below) rely upon submissions as to the effect of a consent order (sealed by the court on 23 December 2011) (hereafter the "consent order") agreed between the parties in previous judicial review proceedings (CO/7360/2011) brought by the claimant against two separate decisions of the defendant made on the same date (16 March 2011).
- I will deal with the issues in this case as set out at [8]-[14] below. Given the issues explained at [8] and [9], it is necessary to quote at some length from relevant letters in the section under "Background Facts".
- First, I will consider whether the leave that the claimant was granted on 11 June 2012 was leave pursuant to the defendant's policy guidance in respect of para 353B, as the claimant contends. The defendant states that the claimant was granted DLR on 11 June 2012 outside the Immigration Rules in line with the leave of his partner and not on the basis of para 353B or Article 8.
- Second, I will consider the effect of the consent order. In particular:
i) whether its effect was that the decisions 16 March 2011 were "erroneous" or "no longer valid", as Mr Ali submitted (an argument that these previous decisions were quashed by the terms of the consent order has been abandoned); and/or
ii) whether its effect was that the defendant agreed to reconsider the decisions of 16 March 2011 by considering the claimant's up-to-date circumstances at the date of reconsideration and applying the policy in chapter 53 as it had existed as at 16 March 2011 when the practice was to grant ILR.
- I will then consider the grounds which are as follows:
i) In reliance upon the effect of the consent order being as stated in i) above, ground 1 is that the claimant falls within the second exception. The defendant's failure to apply the second exception when the decision was "re-taken" on 11 June 2012 was therefore unlawful.
ii) In reliance upon the effect of the consent order being as stated in ii) above, ground 2 is that, in deciding to grant the claimant 3 years DLR as opposed to ILR, the defendant has unlawfully discriminated against or acted conspicuously unfairly against the claimant.
iii) Ground 3 is that the claimant had a legitimate expectation that the defendant would reconsider his case under the legacy programme by applying the policy in chapter 53 as it had existed as at 16 March 2011.
iv) Ground 4 is that the defendant gave inadequate reasons for her decision to grant 3 years' DLR and not ILR.
v) Ground 5 is that the withdrawal of the policy to grant ILR "for those in the claimant's position as opposed to the generality of individuals in the legacy programme" was unlawful because the claimant was in the position of not having received a lawful decision under the legacy programme as evidenced by the consent order. The claimant relies upon KA (Turkey) v. Secretary of State for the Home Department [2012] EWCA Civ 1183.
vi) Ground 6 is that the deletion of para 395C and the introduction of para 353B by Parliament was made on the basis of a false premise, that is to say, on the basis of incorrect statements made by the Secretary of State to Parliament that all cases in the legacy programme had been completed.
The background facts
- The claimant is a failed asylum seeker and national of Turkey. He entered the United Kingdom on 21 March 2005 and claimed asylum two days later. His asylum claim was refused by the defendant on 13 May 2005 and his appeal dismissed on 19 August 2005. He became appeal rights exhausted on 30 August 2005. On 6 February 2006 he applied for leave to remain under the EC Association Accession Treaty. This application was refused. On 3 February 2010 the claimant was encountered. On 17 February 2010, his then representatives (Montague Solicitors) wrote to the defendant stating: "We believe that our client comes within the heads of category considered under the legacy case load".
- On 16 August 2010, the defendant wrote to the claimant (page 400 of the trial bundle (TB)) stating:
"Your case is in the backlog of older asylum applications that the UK Border Agency is in the process of concluding. The Case Resolution Directorate (CRD) are responsible for your case.
The Case Resolution Teams have been established to deal specifically with the older asylum applications, such as yours, and their aim is to resolve these cases by either removing individuals from the United Kingdom or granting them leave to remain in accordance with the existing law and policy. ..." (my emphasis)
- On 31 August 2010, the claimant made further submissions (TB403), stating "I have no children and have no evidence of lawful employment". The accompanying witness statement from the claimant dated 28 August 2010 (TB405) referred, inter alia, to the claimant's residence in the United Kingdom for six years. There was no mention in the cover letter or in the witness statement of any relationship in the United Kingdom.
- The defendant made two decisions by letter dated 16 March 2011. The first decision (TB395) was that the claimant's case had been fully reviewed by the CRD and that the outcome of that review was that he had no basis of stay in the United Kingdom, that he should make arrangements to leave the United Kingdom without delay and that his removal may be enforced if he failed to leave. The second decision rejected his further representations of 31 August 2010 on the ground that further representations made by post after 13 October 2009 were not accepted by the UKBA.
- By a letter dated 28 March 2011, the claimant's solicitors wrote to the UKBA complaining that the decision contained within the letter of 16 March 2011 was unfair and inadequately reasoned. This letter stated that the claimant had established private and family life but no further details were given. This was the first time the right to family life was mentioned on behalf of the claimant. A further letter dated 6 May 2011 from the claimant's solicitors again relied upon the claimant's right to family life in the United Kingdom. The first time there was any mention of the claimant having a partner in the United Kingdom was in a letter dated 2 June 2011 from the claimant's solicitors to the CRD.
- On 2 August 2011, the claimant lodged a claim for judicial review (CO/7360/2011). The grounds challenged both of the decisions dated 16 March 2011. At para 8 of those grounds, it was conceded that the family life the claimant had been enjoying had ceased to exist. Between May and September 2011, the claimant's relationship with his then wife broke down. On 1 October 2011, the claimant went though an Islamic ceremony of marriage with a Ms. Melek Feyiz (hereafter referred to as his partner).
- As stated above, this judicial review claim was settled by consent in a consent order sealed on 23 December 2011. Given the central importance of this consent order, I quote it in full:
"FORM OF CONSENT
UPON the Defendant agreeing to consider the representations of 31 August 2010 as contained within the Claimant's judicial review bundle CO/7360/2011
AND UPON the Claimant, if he has any further representations to make to the Defendant, submitting these representations to the Defendant and the Defendant receiving any and all submissions from the Claimant within 4 weeks of the date that this consent order is sealed
AND UPON the Defendant agreeing (i) to consider the representations of 31 August 2010 as contained within the Claimant's judicial review bundle CO/7360/2011 and any further representations by the Claimant submitted within the timeframe set out in this consent order; and (ii) to issue a decision within 3 months of the date of the sealing of this order, absent special circumstances
The Solicitor for the Claimant and the Solicitor for the Defendant agree by consent
IT IS ORDERED THAT:
1. This judicial review claim be withdrawn.
2. No order as to costs."
- On 20 January 2012 (TB277) the claimant made fresh representations stating, that he falls within the legacy programme, that he was being inconsistently treated when compared with others and that his removal would breach his rights under Article 8 as he had established a family and private life in the United Kingdom. This letter gave details of his relationship with his partner, stating that she was a Turkish businessperson with leave to remain under the EC Accession Agreement until February 2014.
- On 11 June 2012, the defendant made two decisions. In the first decision, she granted the claimant DLR for 3 years. This letter (insofar as relevant) reads:
"Your claim has been reviewed and it has been decided that the Secretary of State's discretion should be exercised in your favour and you have been granted limited leave to enter or remain in the United Kingdom for a reason not covered by the Immigration Rules. You have been granted leave to remain until 10/06/2015.
You have been granted this leave in accordance with the published Home Office Asylum Policy Instruction on Discretionary Leave." (my emphasis)
- The second decision of 11 June 2012 rejected the claimant's representations as a fresh claim under para 353 of the Immigration Rules. In the reasons which followed the cover letter, the claimant's Article 8 claim was considered. The letter stated that account had been taken of the claimant's residence in the United Kingdom of seven years, his "marriage" pursuant to an Islamic ceremony on 1 October 2012 and that his partner had leave to remain until 2014 under the EC Association Agreement. The letter went on to reject the representations on the basis of Article 8 as a fresh claim. The final paragraph of this letter reads:
"Your asylum and/or human rights claim has been reconsidered on all the evidence available, including the further submissions, but it has been decided that the decision of 13 May 2005 upheld by the Immigration Judge on 30 May 2005 should not be reversed. Accordingly it is not appropriate to grant you/your client asylum or Humanitarian Protection for the reasons above. However, it has been decided to exercise discretion in your favour and grant you discretionary leave to remain in the United Kingdom." (my emphasis)
- After the instant judicial review claim was lodged on 11 September 2012 and permission granted on 20 November 2012, the defendant made the decision of 2 May 2013 already referred to above, by which she maintained her earlier decision to grant DLR. The contents of this letter are important. The letter states, insofar as relevant:
"You submitted further representations on behalf of your client on 20/01/2012, these were subsequently refused on 11/06/2012, less than 5 months after they were submitted. This is not considered a delay, nor is it accepted that the time it took to make the decision has disadvantaged your client in any way. I would note that in those submissions he provided evidence, for the first time, concerning his relationship with his partner and her immigration status. However we are mindful of the comments made by Stephen Norris QC [sic] (sitting as Deputy High Court Judge) in R (on the application of Mohammed) v Secretary of State for the Home Department [2012] EWHC 3091, for this reason your client's application has been considered not only with reference to 353B of the Immigration Rules, but also the new repealed 395C and the EIG which accompanied both rules. For the avoidance of doubt, this should not be regarded as a concession by UKBA that there has been (a) a delay or (b) your client has suffered any prejudice by such a delay.
Whilst it was decided that your client did not qualify for leave under Article 8, hence the decision to refuse the further submissions of 20/01/2012, the Home Office exercised discretion in his favour and granted him leave until 10/06/2015 (3 years), on account of the fact that his partner, who is also a Turkish National, has leave until 02/02/2014 (BUS under EC Association Agreement LTR). Ideally, he should have only been granted leave until 02/02/2014, which is when his partner's leave expires. He was however granted 3 years, which benefits him greater.
CRD was established to
Consideration of a case by CRD
Paragraph 353B of the Immigration Rules states:
Character, conduct and associations:
Compliance:
Length of residence spent for reasons outside the control of the migrant:
Whilst it has been noted that your client has been resident in the UK for 8 years, it is noted that he absconded from
We recognise that had a decision been taken before February 2012, your client's application would have been considered with reference to the new repealed Paragraph 395C of the Immigration Rules [states]
Careful consideration has been given to your client's case with reference to not only paragraph 395C, but also the EIG which accompanied paragraph 395C. You have adduced no evidence to demonstrate that by virtue of his age,
The relevant EIG stated at paragraph 53.1.2 that
Your client has failed to adhere to reporting restrictions and has absconded over a total period exceeding 4 years. This period has been weighted against his overall stay in the United Kingdom which amounted to 6 years (the initial decision in relation to his legacy application was dated 16th March 2011). It is clear that during a considerable proportion of his residence within the United Kingdom, he has failed to report and has absconded. This has to be weighed against any other factors which may be regarded as supportive of his application.
In conclusion, taking all of the factors listed in paragraph 395C and the accompanying version of EIG together, the decision of 11/06/[2012], remain the same." (my emphasis)
- The claimant was granted permission to amend his grounds on 13 May 2014. Amended grounds were filed after judgment had been delivered in Geraldo on 6 September 2013.
- On 13 November 2013, the defendant issued another decision dated 13 November 2013. Mr Ali did not object to my looking at this letter; Mr Poole did not register any objection. It seems to me appropriate for me to have regard to the terms of this letter, given that it appears to shed light on the question whether the claimant was granted leave under para 353B/chapter 53 or whether he was granted leave outside the Immigration Rules in line with his partner's leave to remain. The letter repeats much of what was said in the letter dated 2 May 2013. However, there are some differences. Besides amendments to the details given of the claimant's record of non-compliance with his reporting conditions and contact with the Home Office:
i) there is no mention of the judgment of Mr. Stephen Morris QC in Mohammed or of para 395C;
ii) the letter makes the point that the claimant's representations of 31 August 2010 were not accepted as further submissions because he had not made them in person and he had failed to make an appointment to submit them in person; and
iii) in the section where "length of residence for reasons outside the control of the migrant" is considered in the context of para 353B, the length of residence taken into account was 8 years.
Assessment
The grant of DLR on 11 June 2012
- The type of leave an individual is granted is a question of fact. Ordinarily speaking, one would expect that the defendant would be able to say with clarity and certainty what type of leave was granted and under what provisions.
- In the instant case, the defendant's amended summary grounds of defence and skeleton argument state that the claimant was granted leave on 11 June 2012 in the exercise of the defendant's discretion outside the Immigration Rules and that he was not granted leave on the basis of para 353B or the guidance in chapter 53 (or on the basis of Article 8).
- The defendant's decision letter of 2 May 2013 considered both paras 395C and 353B. Mr Ali submitted that this was in itself a recognition by the defendant in May 2013 that the claimant fell within the second exception. He submitted that, in turn, this showed that he was granted leave on the basis of the policy in June 2012. He submitted that this is supported by the fact that the length of residence considered by the caseworker in his or her assessment of the factors in para 395C was 6 years, which coincides with the claimant's length of residence from the date of his arrival in the United Kingdom (March 2005) up until the date of the adverse decision in March 2011. He submitted that, given there was no witness statement adduced on behalf of the defendant, it was not open to Mr Poole to give evidence to the effect that the caseworker had misunderstood the judgment of Mr. Stephen Morris QC in Mohammed, where the judge said (at [78]):
"There is no express reference in the 7 February 2011 letter to the Ch. 53 guidance. The letter merely enumerates the paragraph 395C factors, states that the Defendant has considered those factors and then in the ensuing narrative gives the reasons for the decision applying those factors. The Defendant submits that there is no requirement for such an express reference. That may be so, but in the present case there is no reference in the express terms of the letter to the fact that residence of between 6 to 8 years is a significant factor or that it weighs in favour of the grant of leave to remain. All that there is the assertion of the bald fact of the Claimant's residence of 10 years and 1 month. There is no indication in the letter that the length of residence section of paragraph 53.1.2 EIG has been consciously considered. For example, the letter does not say "it is noted that you have resided in the UK for more than 6 to 8 years, but other factors in your case outweigh the length of your residence."
- However, Mr Ali's submissions ignore the fact that the opening paragraph of the decision letter of 2 May 2013 specifically stated "We are mindful of the comments
" of Mr. Morris in Mohammed. The letter then specifically stated: "for this reason your client's application has been considered not only with reference to 353B of the Immigration Rules, but also the new repealed 395C and the EIG which accompanied both rules".
- Accordingly, and notwithstanding the absence of a witness statement, it could not be clearer, in my view, that the only reason why para 395C was considered at that point was that the caseworker was under the misconceived view that the judgment of Mr. Morris in Mohammed required the case to be considered under para 395C notwithstanding the fact that it had been deleted and replaced by para 353B. This is plainly why the length of residence considered for the purposes of para 395C was 6 years.
- The defendant's clear rejection of the claimant's Article 8 private and family life claim means that he was not granted leave on the basis of Article 8. If the claimant was granted leave in line with his partner's leave under the EC Accession Agreement, it is odd that he was granted leave beyond his partner's leave. There is no explanation for this, although the letters dated 2 May 2013 and 13 November 2013 state: "He was however granted 3 years, which benefits him greater". On the other hand, the duration of the leave granted to the claimant (three years) was consistent with the policy in chapter 53 at the time.
- In my judgment, it is of crucial importance that the letter dated 11 June 2012 granting leave stated in clear terms: "You have been granted this leave in accordance with the published Home Office Asylum Policy Instruction on Discretionary Leave." It was signed by a caseworker in the CAAU number 2 Controlled Archive" in the "Case Resolution Directorate", a body that was specifically tasked to deal with the backlog of asylum cases. It was specifically tasked to decide whether removal was no longer appropriate.
- Given the lack of any explanation by way of a witness statement as to why the claimant was granted 3 years' DLR until 10 June 2015 whereas his partner's leave was due to end in February 2014 and that the letter granting leave dated 11 June 2012 clearly stated that the claimant was granted leave on the basis of para 353B and the policy in chapter 53, there is no basis for going behind the clear terms of the letter dated 11 June 2012.
- Accordingly, I shall decide the remaining issues on the basis that the claimant was granted 3 years' DLR on the basis of para 353B and the then applicable policy in chapter 53.
The Consent Order
- I turn to Mr Ali's submission that the effect of the consent order was that the decisions of 16 March 2011 were erroneous or no longer valid.
- I reject Mr Ali's submission that the fact that para 395C was considered in the letter dated 2 May 2013 and that para 395C was decided on the basis of a period of residence of 6 years shows that the defendant acknowledged that the decision of 16 March 2011 had to be re-taken and that this in turn showed that the earlier decision of 16 March 2011 was invalidly taken or was erroneous. As I have said above, it is clear from the terms of the decision letter dated 2 May 2013 that the para 395C was considered only because the caseworker considered that he/she was required to do so pursuant to the judgment of Mr. Morris in Mohammed.
- Whilst Mr Ali is correct to say that there is no witness statement on behalf of the defendant to support the suggestion at para 18 of the defendant's summary grounds of defence that the defendant agreed to a consent order for pragmatic reasons and in order to avoid unnecessary waste of the Court's time, the reality is that the consent order does not make any mention of the defendant agreeing to withdraw her earlier decisions of 16 March 2011, nor does it suggest in any way that the defendant considered that those earlier decisions were incorrect or that they were not validly taken or were erroneous. There is nothing to suggest that the defendant had withdrawn either of her decisions of 16 March 2011. Indeed, it is clear from the consent order that it is the claimant who decided to withdraw his claim. Mr Ali submitted that the claimant decided not to pursue his claim because the defendant had agreed to reconsider his claim. Not only is this not supported by any evidence, it runs counter to the terms of the consent order, which makes no mention of any agreement to "reconsider" on the part of the defendant.
- It is also important to note that, whilst there were two decisions of 16 March 2011 one which gave the claimant the defendant's decision on his case under the legacy programme and the second which refused to accept further representations made in writing the consent order does not refer, in terms or by implication, to the first decision. The defendant's agreement to consider the representations of 31 August 2010 is relevant only to the second decision of 16 March 2011, whereas the claimant needs to show that the first decision of 16 March 2011 was erroneous and that it was re-taken, in order to rely on the second exception.
- The fact that the claimant agreed to the Court making no order as to costs supports my view that the consent order did not have the effect Mr Ali contends, that the decisions of 16 March 2011 were erroneous or no longer valid. I reject Mr Ali's submission that they were.
- It is even more difficult to find that the effect of the consent order was that the defendant agreed to reconsider the decisions of 16 March 2011 by considering the claimant's up-to-date circumstances as at the date of the reconsideration and applying the policy in chapter 53 as it had existed as at 16 March 2011. The general rule is that the Immigration Rules and policies that are applied when a decision is made are those that are in force as at the date of the decision. If, contrary to the general rule, the defendant had agreed to sweep aside her decisions of 16 March 2011 and replace them with new decisions to be taken on the basis of the claimant's up-to-date circumstances but by applying an immigration rule that had been deleted and a practice/policy that had been withdrawn, I would have expected to see clear words to that effect. Indeed, one would have expected the claimant's representatives to ensure that any such agreement on the part of the defendant was clearly stated in the consent order. There is nothing to this effect. Such words as were used in the consent order merely show that the defendant had agreed to consider the submissions of 31 August 2010 together with any further representations: there is nothing to indicate she regarded her earlier decisions of 16 March 2011 as not having been validly made and that she had agreed to reconsider them.
- I therefore reject Mr Ali's submission that the defendant agreed to reconsider the decisions of 16 March 2011, let alone that she agreed to reconsider them by considering the claimant's up-to-date circumstances as at the date of the reconsideration and applying the policy in chapter 53 as it had existed as at 16 March 2011.
Ground 1 that the claimant falls within the second exception
- Given my rejection of Mr Ali's submission that the effect of the consent order was that the decisions of 16 March 2011 were erroneous or no longer valid, there is no basis whatsoever for the submission made on the claimant's behalf that, in making the decision to grant leave on 11 June 2012, the defendant had "re-taken" the previous adverse decision of 16 March 2011. For the reasons given already, I also reject the submission that the mere fact that the defendant had considered para 395C in the decision of 2 May 2013 was a recognition that the claimant fell within the second exception. It is plain that these strenuous efforts were being made in order to "shoe-horn" the claimant's case into the second exception set out at para 5.2 of chapter 53 of the policy that came into force on 9 July 2012.
- However, there is another reason why ground 1 is hopeless. There is a second condition for the second exception to apply, that is, that the later decision is made on the same evidence as the earlier adverse decision. Mr Ali simply ignored this. It simply cannot be said that the decision of 11 June 2012 was made on the same evidence as the decision of 16 March 2011 that the claimant had no basis of stay in the United Kingdom, given the following chronology:
i) In his further submissions of 31 August 2010, the claimant made no mention of being in a relationship. He specifically stated that he had no children and no evidence of lawful employment. These submissions were rejected in the second of the two decisions of 16 March 2011.
ii) The letter dated 28 March 2011 from the claimant's representatives to the defendant stated that the claimant had established private and family life but no details were supplied.
iii) A further letter dated 6 May 2011 from the claimant's representatives again relied upon the claimant's right to family life but it again gave no details of his family life.
iv) The first time there was any mention of the claimant having a partner in the United Kingdom was in the letter dated 2 June 2011. However, yet again, no details of the relationship were given.
v) The claimant's grounds ([8]) in support of his judicial review claim lodged on 2 August 2011 conceded that the family life the claimant had been enjoying with his then wife had ceased to exist. Between May and September 2011, the claimant's relationship with his wife broke down.
vi) On 1 October 2011, i.e. by the date the parties agreed the consent order, the claimant went through an Islamic ceremony of marriage with his now partner.
- I therefore reject ground 1.
Ground 2 - Discrimination/conspicuous unfairness
- Ground 2 relies upon the consent order having the effect the defendant agreed to reconsider the decisions of 16 March 2011 by considering the claimant's up-to-date circumstances as at the date of reconsideration and applying the policy in chapter 53 as it existed as at 16 March 2011 when the practice was to grant ILR. The claimant contends that, by granting 3 years' DLR and failing to apply the policy, the defendant had unlawfully discriminated against or acted conspicuously unfairly against the claimant. In support thereof, I was referred to the following:
i) The same statistics and evidence discussed at [55] of Geraldo.
ii) The fact that the claimant had submitted to the defendant "full details" of eleven individuals whose circumstances he said were similar or identical to his own, all of whom had been granted ILR at various dates prior to 20 July 2011. Mr Ali submitted that the claimant had therefore provided details of the comparators. The defendant had not taken issue with this evidence or provided evidence that the circumstances of the individuals in question were not identical or similar.
- Mr Ali submitted that this ground had not been dealt with in any of the decided cases in relation to the legacy programme and that it was not a re-dressing of the consistency arguments dealt with in other cases for the following reasons:
i) The claimant raises unlawful discrimination; and
ii) Geraldo did not deal with the consistency argument.
iii) Whilst the court in Hamzeh had dealt with the consistency argument, Hamzeh can be distinguished because: (a) the claimants in Hamzeh had been refused leave, whereas the claimant in the instant case was granted DLR; and (b) the second exception applies to the claimant.
iv) Whilst Lewis J in Mohammed had dealt with the same statistics at [26]-[27] and the unfairness argument based on those statistics, Mohammed could be distinguished on the ground that the claimant in Mohammed had been granted three years' leave to remain on the basis of his Article 8 claim which was therefore a rights-based grant of leave, whereas the claimant's leave was DLR under the policy.
- Given that I have rejected that the consent order had the effect contended for ground 2 to apply, there is no basis whatsoever for any argument that the policy that applied as at the date of the decisions of 16 March 2011 was applicable to the claimant's case or should be regarded as applicable to his case. There is thus no basis for any attempt to draw comparisons between the defendant's treatment of his case and her treatment of other cases in the legacy programme. This alone is sufficient to dispose of ground 2.
- Further, and in any event, I reject the submission that ground 2 is not a re-dressing of the consistency arguments dealt with in other cases. It is. My reasons are:
i) The references to discrimination and comparators are an attempt to use Article 14 of the ECHR without expressly mentioning Article 14, no doubt because it is known that the claimant is nowhere near establishing the criteria for relying upon Article 14. For a start, Article 14 cannot stand alone.
ii) The reasons given for distinguishing Hamzeh ignore the reasoning at [40] of Hamzeh, where Simler J said:
"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, those 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."
iii) The reasons given for distinguishing Mohammed ignore the fact that Lewis J was speaking generally when he said at [26] and [27]:
"26. The Claimant sought to contend, on the basis of the description of the evidence before the court in Geraldo, that unfairness arose in the following way. It is said that, in Geraldo, the evidence was that all individuals who received a positive decision on removal by which, the Claimant submitted, was meant a decision not to remove were granted indefinite leave to remain. In the period to 19 January 2011, 97% of individuals were granted individual leave to remain. The only individuals who were not granted indefinite leave were those cases qualifying for humanitarian protection or by reference to other rights based criteria
.
27. Firstly, in my judgment, in order to establish a legitimate expectation that the Claimant would be granted indefinite leave to remain in 2009, there would need to be evidence of "a practice that was so unambiguous, so widespread, so well-established and well-recognised" as to involve a commitment that particular categories of cases would always be granted indefinite leave to remain and only in certain, narrowly prescribed cases would discretionary leave be granted (see, per Lord Wilson, in R (Davies v Revenue & Customs Commissioners [2011] 1 WLR 2625 at paragraph 49). There is, in my judgment, no basis for contending that the evidence referred to in Geraldo demonstrated such a clear, unambiguous, well- recognised practice amounting to a commitment to grant indefinite leave. Rather, the nature of these decisions involved consideration of a wide range of factors, where a number of potential decisions (removal, indefinite leave to remain or discretionary leave) could be reached. The outcome of these individual cases depended upon the consideration of all the relevant factors and not the application of a legitimate expectation derived from a settled, unambiguous practice
."
- In reality therefore the argument now advanced on the claimant's behalf under the discrimination/conspicuous unfairness ground is the same. The fact that the claimant has produced evidence of eleven individuals who were granted ILR in 2011 is neither here nor there, when one considers that Lewis J in Mohammed dealt with the submission that 97% of individuals were granted ILR in the period to 19 January 2011 and yet concluded that there was no basis for contending that the evidence referred to in Geraldo demonstrated that there was "a practice that was so unambiguous, so widespread, so well-established and well-recognised" as to involve a commitment that particular categories of cases would always be granted ILR and only in certain, narrowly prescribed cases would discretionary leave be granted.
- Mr Ali sought to rely Hussain v Secretary of State for the Home Department [2012] EWHC 1952 (Admin) in which the Court rejected the defendant's argument, based on Otshudi v Secretary of State for the Home Department [2004] EWCA Civ 893, that conscientious decision makers, applying their minds to the same set of facts, may sometimes come to different conclusions. However, the claimant in Hussain was one of seven individuals involved in the hijacking of a plane. This was held to be "not a significant pool with which to compare [the claimant's] situation", giving rise to "no undue burden in requiring a consistency of decision-making in relation to the treatment of applications for ILR made by the hijackers" ([50]). In contrast, the pool in relation to cases in the legacy programme for the period up to 19 January 2011 numbered nearly 150,000, according to the statistics at [55] of Geraldo. The production by the claimant of bare details (names, addresses and evidence of the grant of leave) of eleven individuals who were granted ILR prior to 20 July 2011 is neither here nor there; it does not even begin to demonstrate that there was any inconsistency in treatment, nor does it place any burden on the defendant of disproving his bare assertion that the circumstances of these individuals were similar to, or identical with his own.
- I therefore reject ground 2.
Ground 3 Legitimate expectation
- It is only necessary for me to state the relevant principles briefly, given my comments at [51]-[53] below. The essential requirements of a claim for legitimate expectation, derived from R v IRC ex parte Unilever [1996] STC 681, are: (i) the claimant must have put all of his cards on the table; (ii) the body concerned made a representation that was clear, unambiguous and devoid of relevant qualification; (iii) the claimant must be within the class of persons to whom the representation was made or it was otherwise reasonable for him to rely upon it; and (iv) the claimant did indeed rely upon it to his detriment. In relation to reliance and generally, Lord Dyson explained in Paponette v A-G of Trinidad and Tobago [2010] UKPC 32 at [28]-[30]:
"The question is, was there a promise which was clear, unambiguous, and devoid of relevant qualification?
In answering that question one looks to see what, on a fair reading of what was said, would be reasonably understood by a person to whom the words were expressed. Reliance on any promise is not essential, but if there has been reliance, that would be relevant in deciding whether it is open to the authority to go back on the promise and will be one of the factors to bear in mind when deciding whether a change of policy or a revocation or abandonment of the promise can be justified in the public interest."
The question ultimately is whether the authority in question has acted so unfairly as to amount to an abuse of power: Nadarajah v. Secretary of State for the Home Department [2005] EWCA Civ 1363 and R (S) [2007] EWCA Civ 546.
- Mr Ali sought to show that the defendant made a representation that was clear, unambiguous and devoid of relevant qualification by means of the following:
i) The defendant's letter dated 16 August 2010 stated that the aim of the CRD was to resolve cases under the legacy programme by either removing individuals from the United Kingdom or granting them leave to remain "in accordance with the existing law and policy".
ii) The defendant had decided the claimant's case on 16 March 2011. By agreeing to reconsider the claimant's case in the consent order, the defendant should be held to have accepted that she would reconsider the claimant's up-to-date circumstances by reference to the Immigration Rules and the chapter 53 guidance that were in place at the time of the original decision, 16 March 2011.
- I reject these submissions. First and foremost, the terms of the consent order cannot reasonably be read to mean that the defendant had agreed to re-open her decision of 16 March 2011 and re-take that decision, much less that she agreed to do so by considering the claimant's up-to-date circumstances but by reference to the Immigration Rules and the chapter 53 guidance that were in place as at 16 August 2010. Nor can it be reasonably be said that the letter of 16 August 2010 contained a promise that the claimant's case would be decided in accordance with the law and policy that existed at the date of the letter even if a decision made is subsequently "re-taken" (which is not the case) at a time when the policy no longer applied.
- Mr Ali submitted that the claimant had relied upon the "promise" to his detriment but it was not explained precisely what form such reliance took. As to detriment, Mr Ali submitted that the claimant had suffered detriment because he received DLR instead of ILR. He made no attempt to engage with the reasoning at [131] of Geraldo, that there had been no real injustice because the claimant in that case (in common with the claimant in the instant case) had been granted DLR for 30 months.
- I therefore reject ground 3.
Ground 4 Adequacy of reasons
- Mr Ali submitted that that the defendant failed to give adequate reasons for her decision to grant DLR and not ILR. The concern appeared to be with the requirement of procedural fairness, that the defendant should give adequate reasons for her decision, as opposed to a concern with the substance of the decision, that there was a substantive error of law.
- Either way, I reject this ground, for several reasons. Firstly, review decisions under the legacy programme and decisions to grant DLR under the legacy programme are not "immigration decisions": Eady J in Baser v Secretary of State for the Home Department [2012] EWHC 3612 (Admin). This reduces the requirement for detailed reasons to be given.
- Secondly, the guidance in chapter 53 as to the type and duration of leave to be granted if a caseworker decided that removal was no longer appropriate is summarised at [4] above. As the decision in the claimant's case was made on 11 June 2012, the guidance provided for the grant of 3 years' DLR, unless one of the two exceptions applies. The claimant did not fall within either of the exceptions. The defendant did not need to given any reasons for not granting ILR in the exercise of her general discretion; see Karim Mohamed v Secretary of State for the Home Department [2014] EWHC 1405 (Admin) where, at [21(iv)], Philip Mott QC said: "There is no requirement to give reasons for not exercising a discretion reserved for exceptional cases". I see no reason to take a different view.
- The defendant's reasons for granting DLR are plain, adequate and sufficient. The first decision letter dated 11 June 2012 specifically stated that the claimant had been granted leave in accordance with the "Home Office Asylum Policy Instruction on Discretionary Leave". It is therefore plain that the defendant considered that granting discretionary leave was the appropriate cause of action applying the applicable policy at the time rather than, exceptionally, granting ILR.
- I therefore reject ground 4.
Ground 5 unlawful withdrawal of the policy to grant ILR KA (Turkey)
- Mr Ali submitted that it was unlawful for the defendant to withdraw the policy of granting ILR "for those persons in the claimant's position as opposed to the generality of individuals in the legacy programme" because the claimant was in the position of not having received a lawful decision under the legacy programme as evidenced by the consent order. This in turn was because the decision of 16 March 2011 was unlawful. It was unlawful because the defendant had agreed in the consent order to reconsider the decisions of 16 March 2011. Mr Ali relied upon KA (Turkey).
- I have rejected Mr Ali's submissions concerning the effect of the consent order. On this basis alone, the claimant cannot establish ground 5.
- In any event, KA (Turkey) does not assist the claimant. KA (Turkey) involved a Turkish national who entered the United Kingdom as a visitor with leave to enter for six months and subsequently made an application for leave to remain as a self-employed businessperson under the EC-Turkey Association Agreement. At the time of his application for leave, he was not permitted in law to start his self-employment until he had received a favourable response to his application. In practice, however, at the time of his application, the Home Office was prepared to deal with such applications on a pragmatic basis which reflected a concern that delays in the processing of such applications were unacceptably long with the attendant risk that individuals were finding that their store of capital was eaten up by the wait for approval of their applications. The policy subsequently became more restrictive. The application made by the applicant bridged a period when this pragmatic approach changed into a robust refusal to approve any application where the applicant had started working in breach of the conditions of his leave. The applicant acted on the advice of his solicitors in beginning work during the pragmatic period and ceasing work later when the defendant's approach changed. His application for leave was refused during the latter period. An Immigration Judge allowed his appeal on the ground that the Secretary of State had not acted in accordance with the law and referred the case back to the Secretary of State for a new decision. The second decision again refused the application. This appeal was dismissed. The Court of Appeal allowed the appeal of the applicant, stating. inter alia, that it was a matter of common law fairness that the applicant's case should have been treated in the same manner as others of that period. Whilst the Secretary of State was entitled to change her policy on due notice, the applicant's case should have been weighed in the context of the policy or practice contemporaneous to his application and breach of condition. It was held that the process was conspicuously unfair to the applicant and that the second refusal decision was not in accordance with the law.
- Mr Poole sought to distinguish KA (Turkey) on the ground KA (Turkey) concerned the standstill clause. I am not persuaded that this is a valid basis upon which to distinguish that case, given the fact that the Court of Appeal considered at length the change in the defendant's policy from the pragmatic one that applied when the applicant first started work to the more restrictive one that applied at the time of his application for leave.
- In my view, the true distinction lies in the following:
i) In KA (Turkey), it was established that the respondent operated a practice that was clear and unambiguous, of not refusing applications for leave under the standstill clause on the sole basis that the individual had commenced employment in breach of the conditions of stay.
ii) The applicant obtained legal advice before he commenced his self-employment and, in reliance upon the legal advice and the Secretary of State's practice, commenced his business during the period when the practice was still being operated by the Secretary of State.
iii) The applicant had therefore irrevocably breached the conditions of his stay, in reliance upon the Secretary of State's practice.
iv) The court was not satisfied that the applicant's case was any different from that of another individual which the court considered arose out of almost identical facts to those pertaining to the applicant in the case before it. The Court of Appeal also had examples of a number of AIT determinations demonstrating that the Secretary of State had not taken any point in relation to those cases that trading had commenced in breach of condition.
- The circumstances in KA (Turkey) are very far removed from the circumstances of this case and legacy cases in general. Firstly, it is not possible to make an application in a legacy case, as Ouseley J stated in Jaku; a case either fell within the legacy programme or it did not. Secondly, and as has been stated in several cases (for example, Mohammed at [27]), it has not been shown that the Secretary of State observed a practice "so unambiguous, so widespread, so well-established and well-recognised as to involve a commitment that ILR would be granted and that DLR would only be granted in certain narrowly prescribed cases".
- Thirdly, it is evident that the applicant in KA (Turkey) had taken steps in reliance upon the practice that was established to the court's satisfaction and that he irretrievably changed his status and position. It is easy to see how the court concluded that in the circumstances of the case before it there had been conspicuous unfairness. In contrast, individuals whose cases fall under the legacy programme do not have any legitimate expectation by virtue solely of being in the legacy programme that they will be granted leave to remain or ILR. The only legitimate expectation they have is that their cases would be decided in accordance with the law and policies at the date of the decision made in their case, as has been established in several cases. It is therefore difficult to see how it can be said that there was any reliance on the terms of the policy in chapter 53 as it applied to para 395C.
Ground 6 Deletion of para 395C and introduction of para 353B by Parliament made on a false premise
- My analysis of Mr Ali's submissions on this ground reveals two arguments. The first is that, contrary to what was stated by the Secretary of State, not all of the legacy cases had been considered when the change in policy was effected. Relying again upon KA (Turkey), Mr Ali submitted that the change in the practice of granting ILR to the policy of granting 3 years' DLR was therefore unlawful.
- This submission resembles the ground on which permission was refused in Geraldo ([34], except that, instead of the allegation that "vast numbers of legacy cases were unreviewed", Mr Ali states "not all of the legacy cases had been considered". The argument is plainly the same.
- The second argument was that the deletion of para 395C and the introduction by Parliament was made on the basis of a false premise, i.e. incorrect statements by the defendant to Parliament that all cases in the legacy programme had been completed. However, I was not taken to the material relied upon to support the proposition that misstatements had been made to Parliament.
- Importantly, there has been no attempt to engage with the reasoning in Geraldo, where King J said, inter alia:
i) that it would be contrary to the good administration of justice to permit the claimants to seek in June 2013 to strike down a policy of general application after such a lengthy delay following the change in policy ([128]);
ii) that there was in truth an absence of the requisite cogent evidence that a "vast" numbers of cases had not been reviewed ([129]);
iii) that the timing of the introduction of the policy to grant 3 years' DLR on 20 July 2011 was not linked to any specific end date for the legacy programme, such as 19 July 2011 ([79(1)];
iv) that the introduction of the chapter 53 DLR policy was not predicated upon an assumption or perception by this responsible for introducing the policy that the legacy programme had been completed ([79(2)]); and
v) that the completion of the legacy programme was not a necessary prerequisite to the introduction of the DLR policy ([79(3)]).
- At [79(3)]), King J described the rationale for the introduction of the chapter 53 DLR policy as follows:
"The rationale for the introduction of the Chapter 53 DL policy, which applied to the outstanding legacy cases and non legacy cases alike, was rather the application of key principles for the reform of the immigration system that cases should be decided upon the basis of individual merits according to the law and policy in place at the time of the decision, and was part of a larger revision of the overall leave policy to provide for a coherent overall framework within the system and ensure fairness between the categories. In particular it was felt that the grant of ILR to those without any rights based claim to remain but for whom removal was nonetheless not considered appropriate by the application of the 395C factors (as then still in place) and Chapter 53 guidance, was out of line for example with those who could lay claim to protection under the UK's treaty obligations. In part account had been taken of parliamentary criticism that the grant of ILR to the Chapter 53 cases was over generous. The aim was to put the Chapter 53 guidance on a sustainable basis."
- There has been no attempt to engage with this reasoning. The reasoning at [79(3)] is consistent with the fact that the change from the practice of granting ILR under para 395C to the policy of granting DLR for a period of three years took effect (on 20 July 2011) more than six months before para 395C was deleted and replaced by para 353B (on 13 February 2012). It is simply impossible to see how any misstatements to Parliament when para 395C was replaced by para 353B can have any relevance to the change in practice/policy from 20 July 2011. At the time of the change in practice/policy on 20 July 2011, the relevant Immigration Rules was para 353B which was more restrictive than para 395C. All this shows that there is no link between any such misstatements (if there were any) and the deletion of para 395C or the introduction of the policy to grant 3 years' DLR.
- In Jaku, Ouseley J rejected the argument that the introduction of a change in the Immigration Rules to which the EIG referred, from para 395C to 353B, required a transitional provision to protect those in the position of one of the claimant in that case as untenable.
- KA (Turkey) does not assist the claimant in relation to ground 6 either. The Court of Appeal did not hold in KA (Turkey) that it was unlawful for the Secretary of State to change her practice but that the particular circumstances in that case were such that it was conspicuously unfair for the Secretary of State not to apply the practice that was in place at the date on which the applicant in that case made his application for leave to remain under the standstill provisions, given his reliance on legal advice on the clear and unambiguous practice of the Secretary of State which she had followed in other cases. As I have explained above, the circumstances in KA (Turkey) are very far removed from those in legacy cases in general and in particular the circumstances of this claimant.
- I therefore reject ground 6.
Conclusion
- I dismiss this claim.
