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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> RN v Secretary of State for the Home Department [2014] EWCA Civ 938 (09 July 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/938.html Cite as: [2014] EWCA Civ 938 |
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ON APPEAL FROM QUEENS BENCH DIVISON,
ADMINISTRATIVE COURT
MR JUSTICE BURNETT
CO/9694/2011
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE FLOYD
and
LADY JUSTICE SHARP
____________________
RN (Sri Lanka) |
Appellant |
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- and - |
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Secretary of State for the Home Department |
Respondent |
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Julie Anderson (instructed by Treasury Solicitors) for the Respondent
Hearing date: 14 May 2014
____________________
Crown Copyright ©
Lord Justice Maurice Kay:
Ground 1: unlawfulness, delay and conspicuous unfairness
"(1) The judge erred in finding that there was no obligation on the Secretary of State to grant leave to remain to the appellant following his successful appeal before the ECtHR.
(2) The judge failed to have proper regard to:
(a) the absence of any evidence of any activity on the part of the Secretary of State between July 2008 and May 2009;
(b) the absence of any evidence explaining the delay in implementing the decision taken in May 2009; and
(c) the absence of any adequate reasons why the appellant was not granted some form of leave when he came to light in 2010.
(3) The judge was wrong to find that there was no conspicuous unfairness in this case.
(4) In any event, to the extent that there was no unfairness, that does not mean that there was still not illegality that needed to be taken into account when the decision challenged was taken [in December 2012]"
The reference to "conspicuous unfairness" in (3) is taken from the line of authorities which include R (Rashid) v Secretary of State for the Home Department [2005] AR 608; R (S) v Secretary of State for the Home Department. [2007] INLR 450 and KA (Afghanistan) v Secretary of State for the Home Department [2013] 1 WLR 615 and which are concerned with a somewhat elusive principle designed to facilitate the correction by judicial decision of historic injustice. Its essential ingredient is unlawfulness and not simply maladministration.
(1) The appellant was entitled to be granted leave to remain following the judgment of ECtHR
"18. There is no obligation enforceable in this jurisdiction upon the United Kingdom government to comply with a judgment of the Strasbourg Court. That is a matter for the Strasbourg organs. But in any event, in this case the limit of the Court's requirement was that the claimant should not be removed to Sri Lanka. He has not been…
19…the judgment of the Strasbourg Court does no more than record its decision that removal would violate the claimant's Article 3 rights. It says nothing about the legal basis upon which the claimant should be allowed to stay in the United Kingdom."
This analysis is undoubtedly correct. The domestic court is not concerned with the enforcement of the ECtHR judgment on the international plane which is the subject-matter of ECHR Article – which was not incorporated into domestic law by theHuman Rights Act 1998 so as to give rise to individual rights, enforceable in the domestic courts. In any event, it is trite law that even in the purely domestic context leave to remain is not in the gift of the courts or tribunals. It is a matter for the Secretary of State who is subject to judicial oversight in various ways.
(2) Unlawfulness by reason of delay
"38…those cases confirm what is really elementary principle: that the length of the delay in question cannot normally be taken on its own without consideration also of the consequences resulting from such delay in assessing whether or not the failure to issue the letter of grant of leave to remain is to be categorised as unlawful and to require the grant of relief. Putting it another way, the entire circumstances of each case have to be borne in mind. "
For this reason, it seems to me that, for example, Mersin cannot be treated as a simple analogue in the present case. Mersin was a straightforward case in which the claimant had established his right to refugee status before a special adjudicator and all that was required after that was a simple grant "without any discretion being exercised at all" (per Elias J at page 522). In those circumstances a delay of six months was unlawful. Likewise in Manbakasa, where to grant refugee status in line with a determination of the Immigration Appeal Tribunal "ought…to have been a simple administrative task" as there was "nothing in the circumstances of the case to require any substantial exercise of judgment" (per Richards J at paragraph 66 (vi)).
"…is a registered sex offender and falls to be excluded from a grant of Humanitarian Protection… In such circumstances, policy recommends a grant of six months Discretionary Leave. In granting such leave, [the] case will be subject to active review every six months. If circumstances in Sri Lanka later change to the effect that [the appellant] would no longer be a risk on return, voluntary departure or enforced removal can be pursued."
About six weeks later, on or about 1 May, the decision was made to grant six months DLR. By 25 June 2009 the appellant had absconded without notice of the decision having been served.
"21…It is, however, an inevitable conclusion that many of the problems which the claimant had encountered flow from his absconding. If he had not done so, he would have been given his six months DLR, which would then have been renewed from time to time until any decision was taken that it was safe for him to return to Sri Lanka… [DLR] would have been extended from time to time until a further extension was refused on precisely the same basis as eventually occurred in December 2012…
23…there is nothing in the history of the Secretary of State's dealing with the claim which smacks of conspicuous unfairness."
By that final statement, the judge was saying that, notwithstanding the earlier delays (of which he was critical), this is simply not a Rashid-type case. I agree. As paragraph 21 of the judgment explains, causation is an issue in this type of case: see also my judgment in KA (Afghanistan) v Secretary of State for the Home Department [2013] 1 WLR 615, at paragraph 25. Here, the appellant has not only failed to establish that the delay was unlawful. He has also failed to establish that there was a causative link between the delay and his obtaining protection to which he was entitled.
Ground 2: Legacy
"to transfer some 500,000 outstanding applications received prior to 5 March 2007 to a specially constituted team of some 950 caseworkers, the Casework Resolution Directorate (CRD), which would work through those cases and endeavour to grant or refuse leave to remain by July 2011."
Legacy cases were those where the application had been made before 5 March 2007 but had not yet been resolved by removal or by a grant of leave to remain. By July 2011 there remained a residue of some 116,000 cases (many of them with unresolved difficulties) and these were then transferred to a new body, the Case Assurance and Audit Unit (CAAU).
"Before a decision to remove…is given, regard will be had to all relevant factors known to the Secretary of State including:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) previous criminal record and the nature of any offence of which the person has been convicted;
(vi) compassionate circumstances;
(vii) any representations received on the person's behalf."
Paragraph 395C was repealed on 13 February 2012. The submission on behalf of the appellant is that his case ought to have been considered as party of the Legacy cohort while paragraph 395C was still in force and, if it had been, it is highly likely that he would have been granted ILR.
"6. At the heart of much of the litigation over the years have been eventually largely fruitless and in my judgment misconceived attempts by claimants to show that there was a special and more favourable policy which should be applied to those in the Legacy programme, devised from a target or aim as to the date by when decisions would be made. Their target was then elevated into a legitimate expectation; arising it was said to create unlawful delay such as to create an historic injustice, leading to arguments that particular forms of leave should be granted, that policies should be treated as frozen, that particular periods of residence should be given great weight, all deriving from a misreading of policy…"
Quite so.
Conclusion
LORD JUSTICE FLOYD
LADY JUSTICE SHARP