HHJ Anthony Thornton QC:
- This judgment relates to complex judicial review claims that are brought by the first claimant Yasin Hussein Ahmed Said ("Yasin") and his two sons, the second and third claimants Yusuf Yasin Hussein Said and Yakub Yasin Hussein Said ("Yusuf") and ("Yakub") against the Secretary of State for the Home Department ("SSHD").
- Yasin's claims arise out of his application for settlement and indefinite leave to remain ("ILR") as the spouse of Laila Said ("Laila") who was the mother of Yusuf and Yakub. This application was made on a SET (M) form appropriate under the Immigration Rules ("IRs") for an application for settlement by a spouse where his wife was present and had already settled in the UK. He and Laila had signed the form on 2 June 2004 and Yasin had sent it to the SSHD on 12 August 2004 where it was received on 16 August 2004. It has always subsequently been treated as having been made and dated on and effective from 1 September 2004. It was made on the basis that he was present in the United Kingdom ("UK"), that he had been living in the UK for four years nine months on the date that Laila and he had signed the application, that he was living with Laila and that Laila had previously been granted both British citizenship and the right to settle in the UK on 13 October 2003.
- Yakub's claims for settlement and ILR arise out of Yasin's application since it had included an application on his behalf for ILR as Yasin and Laila's dependent child. Yakub was then seventeen and his application was made on the basis that he was present in the UK, was living with his parents, had come to the UK with his mother and had been living here for four years nine months on the date that the application was signed by them.
- Yusuf's claims for settlement and ILR arise out of his separate application that was made on a SET(O) form appropriate for an application under or outside the IRs for settlement on some other basis than those specifically recognised by the IRs. He was twenty and had signed and sent his application to the SSHD on 12 August 2004 where it was received on 16 August 2004. His and Yasin's applications were made and received by the SSHD simultaneously and it has always been treated as having been made on and effective from 1 September 2004. It was made on the basis that he was present in the UK, that his mother was a British citizen who was present and had settled in the UK, that he had come to the UK with his family to settle here, that he had lived in the UK for four years eleven months on the date that he signed the application, was still living with his family, had no family elsewhere and was totally dependent on his parents.
- Both applications were accepted as being valid by the SSHD and they were subsequently always treated as being both charged and linked. A charged application was one for which the appropriate payment had been both paid by the applicant and received by the SSHD. There was no definition of a linked application in the IRs but it is clear from the way that both applications were subsequently dealt with that they had been marked as being linked following a decision by the case worker who had initially processed them that they should always be considered together and that any decision in one of these three cases should always be taken at the same time as the corresponding decision in each of the other two cases.
- These two applications remained undecided for over ten years. Yasin and Yakub's application was decided in two separate decisions dated 9 October 2014 which were served two weeks later. Yasin was granted ILR and Yakub was initially granted one day's LTR but the SSHD subsequently acknowledged that this grant was a mistake and was in fact for thirty months discretionary leave to remain ("DLR") outside the IRs. Yusuf's application was refused in a decision dated 13 November 2014 as part of a composite decision which also ordered his deportation and refused his human rights claim that it was disproportionate to deport him.
- This judicial review was filed in the Administrative Court on 18 April 2013 and as originally pleaded, was limited to a claim by each claimant for an order compelling the SSHD to make a decision in relation to his particular application which had by then been outstanding for nearly nine years. On 29 May 2013, the SSHD's acknowledgement of service and summary defence sought the dismissal of each claim since it had by then agreed to consider "the claimant's (sic) application" and, absent special circumstances, to make a decision in each case within six months. It was accepted by the SSHD at the hearing that that wording was mistaken and that it should in fact be referring to all three applications. Permission to apply for judicial review was granted by Ms Elizabeth Laing QC sitting as a deputy High Court judge on 23 July 2013 on the grounds that it was well arguable that the lengthy delay in deciding each application was unlawful and that the SSHD had not made an offer to pay the claimants' costs.
- The applications were not decided within the proposed six month period even though no special circumstances were identified by the SSHD. In the autumn of 2013, the substantive application for judicial review was fixed for a one-day hearing on 16 October 2014. No detailed grounds of defence were served and no disclosure was provided by the SSHD despite both being ordered by the court when permission had been granted. On 25 September 2014 and without prior warning, Yusuf was served with a notice of liability to deportation.
- None of the claimants had been served with their respective decisions by the date of the hearing
although the SSHD's counsel announced in open court at the hearing that the decisions in Yasin and Yakub's cases had been made but had not yet been served. I adjourned the hearing to await the service of decisions in all three cases and to enable the claimants to serve draft amended grounds of claim to add claims for damages and, if necessary, to set aside the decisions once served and for the SSHD to serve draft amended grounds of defence in response.
- The SSHD served Yasin with its decision to grant him ILR and Yakub with its decision to grant him LTR two weeks after the hearing and Yusuf with its decision on 13 November 2004 to deport him and to refuse both his human rights claim and his application for ILR. Two of these decisions, to deport him and to refuse his human rights claim, were the subject of an in-time appeal to the First-tier Tribunal ("FtT") whereas the third decision to refuse his ILR application was not since it carried no right of appeal. However, following the service of Yusuf's notice of appeal, Yusuf's legal team discovered that the relevant provisions of the Immigration Act 2014 ("IA 2014") had come into force on 20 October 2014 and are applicable to Yusuf's appeal since the relevant decision being appealed post-dated the commencement of those provisions of the IA 2014. As a result, Yusuf is not able to challenge his deportation order in an appeal to the FtT so that his appeal is now confined to his challenge the decision on human rights grounds.
- The three claimants then served draft amended grounds of claim. Each claimant sought to add claims for damages and declarations arising from alleged breaches of their rights under the European Convention of Human Rights ("ECHR") and the Human Rights Act 1997 ("HRA") that had been caused by the SSHD's ten years' unlawful delay in providing the decisions and by its repeated maladministration that had caused that delay. Yakub and Yusuf also sought orders quashing the SSHD's decisions in their cases dated, respectively, 9 October 2014 and 13 November 2014 and declarations as to the principles that should be applied in the redetermination of their original applications dated 1 September 2004.
- The SSHD contended that I should refuse the claimants' applications for permission to amend their respective claims or, if permission was granted, should refuse each of them permission to apply for judicial review on the amended grounds or, if permission was granted, should then stay or adjourn the hearing of those amended claims. The SSHD also contended that both the original and amended claims should be dismissed on various grounds. The adjourned hearing took place on 19 December 2014 and I ruled at the outset that I would hear all procedural and substantive issues raised by each claimant's original and amended claims as a rolled-up hearing. I was informed after the hearing that Yasin had unhappily died on 12 January 2015.
- It follows that I am now giving judgment in relation to all these procedural questions and in all surviving substantive claims. In consequence, this complex series of issues needs to be addressed:
1. Issue 1: The status of Yasin's claims (Part B, paragraphs 14 – 19 below).
2. Issue 2: The factual basis of claims (Part C, paragraphs 20 – 279 below).
3. Issue 3: Whether the claimants should be granted permission to amend (Part D, paragraphs 280 – 290 below).
4. Issue 4: Whether, if permission to amend is granted, the claimants should be granted permission to apply for judicial review in relation to the amended claims, if so, whether the whole hearing or any issues should be adjourned or stayed (Part E, paragraphs 291 – 308 below).
5. Issue 5: Whether the original claims should be dismissed as being academic (Part F, paragraphs 309 – 318 below).
6. Issue 6: What is the effect if any of sections 139 – 141 of the Legal Aid, Sentencing and Punishment of Offenders Act 2014 ("LASPO") on the determination of Yusuf and Yakub's applications for ILR (Part G, paragraphs 319 – 358 below).
7. Issue 7: What approach should be taken to the decisions in Yasin's, Yusuf's and Yakub's SET applications dated 1 September 2004 given that the decisions were taken on 9 October 2014 in relation to Yasin's and Yakub's application and on 13 November 2014 in relation to Yusuf's application (Part H, paragraphs 359 – 366 below).
8. Issue 8: Whether Yasin's application to seek a mandatory order should be dismissed and, if not, what order should be made in relation to the claim for a mandatory order (Part I, paragraphs 367 – 370 below).
9. Issue 9: Whether Yakub's claim to have the decision dated 9 October 2014 should be dismissed because he has a suitable alternative remedy in the light of the defendant's statement that that decision will be reconsidered (Part J, paragraphs 371 – 378 below).
10. Issue 10: If Yakub's setting aside claim is not dismissed, whether the decision dated 9 October 2014 should be set aside (Part K, paragraphs 379 – 394 below).
11. Issue 11: Whether Yusuf's claim to have the decision dated 13 November 2014 set aside should be dismissed on the grounds that he has a suitable alternative remedy by way of an appeal to the FtT (Part L, paragraphs 395 – 402 below).
12. Issue 12: Deportation of foreign criminals and impact of article 8 (Part M, paragraphs 403 – 428 below).
13. Issue 13: Whether Yusuf's decision dated 13 November 2014 should be set aside (Part N, paragraphs 429 – 454 below).
14. Issue 14: Whether each claimant's claim for damages should be stayed for the defendant's complaints procedure (Part O, paragraphs 455 – 476 below).
15. Issue 15: Whether the facts disclose any, and if so which, breaches of each of the claimant's human rights (Part P, paragraphs 477 – 485 below).
16. Issue 16: Damages and their quantification (Part Q, paragraphs 486 – 489 below).
17. Issue 17: What procedural directions should be given in relation to the determination of any outstanding applications for permission to amend or for permission to apply for judicial review or of any outstanding claims for substantive relief, quantification of damages or costs (Part R, paragraph 490 and the schedule below).
18. Summary of conclusions and copy of order (Part S, paragraphs 491 – 492 and the schedule below).
B. Issue 1 – Status of Yasin's Claims
1.1. The issue
- Yasin unhappily died after the hearing had been concluded but before judgment was handed down. Issue 1 therefore raises the question of whether any of his claims may be carried on and, if so, by whom.
- Yasin was born on 26 May 1953 in Kenya, He became a Kenyan citizen on Kenyan independence and remained a Kenyan citizen throughout his life. Having lived in Kenya throughout his life to that point, he arrived in England on 18 September 1999 on a visitor's visa and applied for asylum on 3 December 1999 which was refused on 29 January 2001. He made a further application for LTR dated 3 December 2002 which was never decided or withdrawn and another for settlement and ILR as Laila's spouse on 1 September 2004 which was decided on 9 October 2014 with a grant of ILR. Laila, whom he had married in Kenya, had also lived in Kenya all her life. She was born a citizen of the United Kingdom and Colonies ("CUKC") by virtue of both her parents being CUKCs and she became a British Overseas citizen ("BOC") with the coming into force of the British Nationality Act 1982 (" BNA 1982"). She came independently to England with Yusuf and Yakub and arrived on 24 August 1999. She became and was registered as a British citizen on 13 October 2003.
- Yasin was finally granted ILR on 9 October 2014 by a decision which only took effect about two weeks later when it was served on him. His outstanding judicial review claims are for damages for breaches of his human rights arising out of the lengthy delay in deciding his application for settlement and the manner in which that application was processed, considered and dealt with and for costs arising out of his original and amended claims. I must also consider whether he should be granted a declaration setting out the date by when his application for settlement should have been decided had no breaches of his human rights occurred.
- Yasin was 61 when he was granted ILR. He had been diagnosed with cancer of the mouth in April 2014 and had then received chemotherapy and radiotherapy for a period of about six weeks. He was unable to eat or drink orally following that treatment. He was weak but alert at the date of the hearings in October and December 2014 but was unable to be present in court. After judgment had been reserved and post-hearing written submissions were being prepared, his counsel informed both the Administrative Court and counsel for the SSHD in an email dated 16 January 2015 that he had passed away on 12 January 2015.
- I have not heard submissions about the effect of this sad news. However, the procedural question as to what should happen to his claims may be readily answered. These may be carried on subject to the need for his personal representatives to apply for an order to carry on the proceedings since a claimant's action that was started before his death survives for the benefit of his estate. The Civil Procedure Rules ("CPR") provide that a deceased's executor or administrator may apply to the court without notice to obtain an order to carry on. Where no personal representative has been appointed, the court may order the claim to proceed in the absence of a person representing the estate of the deceased and may order a suitable person to be appointed to represent the estate of the deceased on the application of that person. The relevant application for a carry on order must be made by either Yasin's estate's personal representative or, if one has not been appointed, by a person wishing to represent his estate. It must be supported by evidence of his death and the authority and suitability of the applicant to represent Yasin's Estate and the written permission of the representative or person to be added as that representative. Following receipt of this draft judgment, an application was made in correct form for Laila to be appointed as his personal representative to carry on the action.
- Yasin's claim for damages under the HRA and his costs of the judicial review in both its original and amended forms are personal claims which fall within the ambit of these provisions. I will need to consider whether an ancillary declaration should be granted when I decide what remedies should be granted for the delay in deciding his application. An appropriate application has now been made and there is no jurisdictional basis for objecting to the order. I will grant permission for an order to carry on Yasin's claims. I must of course decide all outstanding issues that arise in his claim against the SSHD on the same basis as these would have been decided had Yasin remained as a claimant.
C. Issue 2 - Factual Basis of Claims
2.1. The facts
2.1.1. Prior to August 1999
- Little evidence was adduced about the lives of the four members of the Said family whilst they were living in Kenya. Such evidence as there was showed that Yasin was born on 26 May 1953 in Mombasa. He was of mixed race since the ethnic origin of his father was Asian and that of his mother was African. He worked as a mechanic throughout his adult life there. He has a sister who by 1999 was living in Switzerland
- Laila was born on 15 March 1956 in Nairobi to parents whose ethnic origin was Asian. Her parents were both ethnic Asians and CUKCs by nationality. In consequence, Laila acquired CUKC nationality at birth. As a CUKC, she was not permitted under Kenyan law to become a Kenyan citizen when Kenya obtained independence. Her sole nationality remained that of a CUKC. She became a BOC when the BNA 1982 came into force on 1 January 1993. As such, she had no right of abode in the UK until section 4B of the BNA 1982 came into force on 30 April 2003. Her permitted residence in Kenya was conditional on her continuing marriage to a Kenyan citizen and, if she left Kenya or her marriage broke down, she would lose this conditional right to residence and would not be able to regain it or to return to Kenya. She has a brother and two sisters who became BOCs when Kenya obtained independence and all of whom had subsequently left Kenya, settled in England and obtained full British citizenship well before 1999.
- Yusuf was born on 21 December 1982 and Yakub on 17 March 1987. In 2004 both were students, in Yakub's case attending the Shree L.R. Pindolia Academy in Nairobi. The family had visited England before to visit family members who were settled here, their most recent visit had been in December 1997.
- There were no other details of Yasin and Laila's marriage or of their married and family life in Kenya save that they were living in Nairobi in 1999 and had apparently been living there for many years.
- Although Yasin, Yusuf and Yakub are of mixed race, all four family members were regarded by those they came into contact with as being of Asian racial origin as Laila had always been. Both Yasin and Laila's parents, being Yusuf and Yakub's four grandparents, are now dead, Laila's three siblings are British citizens and have been permanently living in England for many years and there was no evidence that any surviving members of either Yasin or Laila's families are currently living in Kenya. Moreover, the unchallenged evidence of all four Said family members was that they neither knew nor had any on-going contact with anyone currently living in Kenya.
- Like many of Asian ethnic origin living in Kenya after Kenyan independence, the Said family experienced racial prejudice, discrimination and social exclusion from those of African origin. Yasin and Laila's marriage became strained at some point prior to their departure from Kenya, possibly as a result of or exacerbated by this racial discrimination, and they separated or at least lived separate lives. Yasin's evidence given in his subsequent asylum application after he had arrived in the UK was that he had been persecuted, harassed by locals, verbally abused and the object of stone throwing and in June 1999 his car had been attacked for ethnic reasons. By 1999, Laila found it impossible to obtain employment and her permission to remain in Kenya as a BOC had become precarious because it was liable to be revoked if her marriage to Yasin broke down irretrievably and was in any event conditional on her and her husband continuing to live in Kenya. Yusuf and Yakub were at school in Nairobi at that time.
- By 1999, all four members of the Said family considered that their prospects in Kenya were bleak. They decided to emigrate to England so as to better their respective futures. Laila was undoubtedly encouraged to emigrate with her two sons by her UK-based siblings and her BOC status. Laila and Yasin moved to England separately. Laila, Yusuf and Yakub each applied for separate visitor's visas, each of which was dated 6 August 1999. They were granted 6-month visas and they travelled to England and arrived together on 24 August 1999 and named her two sisters as her sponsors. The Adjudicator when dismissing Yasin's appeal against the SSHD's refusal of his asylum application stated that Laila had "exercised her rights to return to the United Kingdom with her two children".
- Yasin's separate application for a visitor's visa was also dated 6 August 1999 and he was also granted a 6-month visa. The evidence did not reveal who had sponsored his application or where he initially stayed in England. He travelled first to Switzerland to pay a short visit to his sister who was resident there and who he had not seen for a long time and, having stayed there for a few days, travelled onto the UK and entered on 18 September 1999.
2.1.2. 6 August 1999 – 3 December 1999 - Initial period in UK
184.108.40.206. Primary facts
- On arrival, Laila, Yusuf and Yakub initially stayed for a limited time with each of Laila's two sisters before moving to Hounslow to stay with a friend and that friend's family and then to rented accommodation in Reading where she was able to get work as an auxiliary nurse. She placed Yusuf and Yakub in schools in Reading. On 6 October 1999, having taken advice from immigration solicitors and without previously having any intention of applying for asylum, Laila applied for asylum for herself and her two dependant sons who were both under 18 when the application was made. Her application was based on the racial discrimination, persecution and harassment that all three claimed to have been subjected to in Kenya.
- In this period, the Saids obtained visitor's visas in Kenya, travelled to the UK and applied for asylum. Each of the four Saids applied for a six-month visitor's visa from the British High Commission in Nairobi on 6 August 1999; Laila, Yusuf and Yakub entered the UK on 24 August 1999 and Yasin entered on 18 September 1999; Laila applied for asylum for herself and her two children as her dependants on 6 October and Yasin applied for asylum on 3 December 1999. These applications were submitted to and processed by the Integrated Casework Directorate ("ICD") based in the Whitgift Centre in Croydon. Both applications were made whilst Laila and her two sons and Yasin had outstanding LTR as visitors so that their LTR was extended until each became appeal rights exhausted in relation to those applications and their subsequent refusals.
220.127.116.11. Causes of delay
- There was a six-week gap between Laila's entry into the UK and her application for asylum and a 10-week gap in the case of Yasin. This was in each case only a marginal delay and was wholly attributable to Laila and Yasin.
2.1.3. Period (2): 4 December 1999 – 3 December 2002 – Asylum claims
18.104.22.168. Primary facts
- The SSHD stored all documents generated by the first application for LTR or other immigration application by an applicant on his on her or their principal file. Laila's principal file was numbered S1028806 and Yasin's was numbered S1035356. This number was recorded on a bar code placed on the inside cover of the file. When a principal file reached its physical capacity, a fresh physical sub-file was created which was numbered with the principal file number followed by a stroke and the number of that sub-file (e.g. S1028806/004). Each successive sub-file was numbered in sequential order.
- If an applicant making a first application had a dependent child or dependent children under the age of eighteen included in his or her application, the applicant parent's principal file for that dependant was used to file the papers relating to that dependant and a virtual sub-file was created for each child. Each virtual sub-file number was given a number that was sequential to the most recent previous physical and virtual sub-file number for that applicant but a new physical sub-file was not created. The dependant's virtual sub-file barcode was placed on the inside cover of the principal file. The file number of each principal file and every sub-file and the physical location of each file were recorded in the SSHD's central immigration electronic retrieval system. Yusuf's and Yakub's virtual sub-files were numbered respectively S1028806/002 and S1028806/003. All subsequent paperwork relating to Laila's and Yasin's initial applications and all subsequent applications made by or on behalf of Laila, Yusuf and Yakub were, or should have been, filed in chronological order in Laila's principal file or current physical sub-file and recoded on the electronic retrieval system.
- Laila's application was sent to the Integrated Casework Directorate ("ICD") of the Immigration and Nationality Directorate ("IND") to be considered and decided.
- Laila, Yusuf and Yakub first went to stay with a family friend on their arrival in the UK and then with Laila's sister and then with her brother who was living in Reading. Laila found a 3-bedroom house to rent in Wokingham after a few weeks and she obtained her first job in England working as an auxiliary nurse in the Royal Berkshire Hospital. Yusuf and Yakub attended the Maiden Early Secondary School in Reading, Yusuf joining in Year 10 and Yakub in year 8. Yusuf never settled at school and by late 2000 he was truanting regularly. However, he joined the RAF cadets and excelled in that activity. Meanwhile, Yakub did well at school.
- Yasin applied for asylum on 3 December 1999 on similar grounds to those relied on by Laila coupled with his evidence of his having been the victim of a racially motivated attack in Nairobi in June 1999. There is no document showing which Directorate received this application but it was likely that it was the ICD which was the Directorate that received Laila's asylum application. A new principal file was established for Yasin and this application was also referred to the ICD to be considered. Although his application and its principal file were wholly separate from Laila's application and principal file, its contents made it clear that it was linked to and closely associated with Laila's application.
- Yasin initially worked as a mechanic for Kingston Tyres in its car repair workshop in Reading. He soon lost his job due to his not having a driving licence which was a necessary adjunct to his work nor the immigration status to obtain one. He moved to Luton for a short while but again found it impossible to obtain employment without a driving licence. He then moved to Peterborough and worked as a mechanic in a succession of short-term car repair jobs.
- Throughout 2000 and into 2001, Yasin had little contact with Laila and his sons. On 29 January 2001, his asylum application was refused on the basis that he had come to England in an attempt to patch up his and Laila's differences rather than as a result of his well-found fear of racial persecution. As a result of this letter and Yusuf's difficulties in settling in England, his truanting and his inability to find employment, Laila re-established contact with Yasin, they patched up their differences and their marriage resumed. Yusuf started to stay with him at weekends. He left school in June 2001 but was unable to join the RAF as a trainee given his lack of immigration status or to find a job. He continued to live with Laila but stayed with Yasin at weekends.
- Laila wished to qualify as a specialist surgical nurse. She was unable to obtain a training position in Peterborough so she enrolled at Thames Valley University in Reading in 2001 for a nursing degree funded by the Royal Berkshire Hospital. She continued to work and study in Reading and Yakub continued with his schooling there. Gradually, over the following months, the whole family started to spend time together at weekends since Laila's job and training and Yakub's schooling kept them in Reading and Yasin's car repair work kept him in Peterborough.
- On 18 May 2001, Laila's application for asylum for her and her two dependant sons was refused. On 6 June 2001, Yusuf was convicted of driving without a licence whilst uninsured and with no MOT test certificate and was fined. Laila initially applied to the SSHD for a reconsideration of the refusal of her asylum application who upheld the original refusal decision. She then appealed against that decision but, on 19 September 2001, her appeal was dismissed by an adjudicator. On 18 December 2001, Yusuf was convicted of driving under the influence of alcohol whilst uninsured and without a licence or test certificate and was again fined.
- On 22 January 2002 Laila submitted a fresh human rights claim for LTR outside the IRs for herself and her two dependant sons. This claim would have been placed on her principal file, recorded on Yusuf and Yakub's virtual sub-files and referred to and considered by a unit within the IND but it is not clear from the disclosed documents which Directorate or section within the IND it was received by. The fresh claim was based on Laila being a BOC who (1) had left Kenya and come to England with her two sons to settle here so that her permission to remain in Kenya granted when Kenya achieved independence had been automatically revoked under Kenyan law; (2) was not permitted to re-enter Kenya and (3) would be stateless if she was refused permission to remain in the UK. On 19 March 2002, Laila's MP wrote to the SSHD on her behalf and in support of her claim and stated that she had left Kenya because she had separated from her husband, that her right to reside in Kenya depended on her living with her husband in Kenya and that he had ceased to reside there. This letter was not answered.
- During the course of 2002, Yusuf started a relationship with Ms Karen McKay ("Karen"), he being 19 and she being 17. At that time he was living in Reading with Laila and Karen was also living in Reading. In August 2002, Karen became pregnant with their child.
- On 22 October 2002, an adjudicator dismissed Yasin's appeal against the refusal of his asylum application. At the hearing, Yasin's representative conceded that there was no basis for his appeal to succeed since he could not show that he had left Kenya as a result of a well-founded fear of persecution. Instead, it was contended on his behalf that he had established a private and family life in the UK and it would be disproportionate to remove him. The adjudicator dismissed his appeal on the grounds that it would be proportionate to require Yasin to return to Kenya and apply from there to join his wife in the UK given the shortness of the period during which he had established article 8 rights.
- During 2002, having failed to obtain regular employment as a mechanic due to his lack of immigration status, Yasin opened his own one-man car repair business in Peterborough and Yusuf helped him in that business on an occasional basis.
- On 3 December 2002, Yasin submitted a fresh human rights claim for LTR outside the IRs that was based his family life in the UK with his wife and two sons, the impossibility of his wife and his sons being able to return to Kenya and the racial discrimination that he would encounter if he returned there. This claim did not include a dependency claim on behalf of either Yusuf or Yakub. It would have been received by the IND and probably by the same Directorate or section within the IND as received Laila's fresh claim dated 22 January 2002. There is no evidence that Yasin's fresh claim was ever processed or decided. The immigration chronology served with the SSHD's detailed grounds of defence stated that Yasin's fresh claim had been submitted on 3 December 2002 and had been "subsequently refused". The SSHD disclosed no document or GCID log that referred to this claim or its consideration or refusal. I therefore conclude that this pleaded assertion that the claim was refused was erroneous and that in fact it was never considered or decided by the SSHD or withdrawn by Yasin until it was superseded by his application for ILR dated 1 September 2004.
- In this period, the SSHD considered and refused Laila's and Yasin's separate asylum applications. Laila applied to the SSHD for it to reconsider its refusal of her application but although the refusal decision was reconsidered, the SSHD decided to maintain its original refusal decision. Laila's subsequent appeal against that decision was also unsuccessful. Yasin's separate appeal against the refusal of his asylum application was also unsuccessful.
- No delay occurred whilst Laila's asylum application went through its consideration by the SSHD, its reconsideration and its appeal to an adjudicator. Similarly, no delay occurred whilst Yasin's asylum application went through its consideration by the SSHD and its appeal to an adjudicator. A small part of the 4-month delay between Laila receiving the adverse decision of the adjudicator and her making a fresh claim application is attributable to her and an even smaller part of the corresponding 6-week delay that occurred in Yasin's case is attributable to him.
2.1.4. Period (3): 4 December 2002 – 2 June 2004 – Fresh claims
22.214.171.124. Primary facts
- No documents or General Casework Instructions Database ("GCID") log entries have been disclosed to show what consideration was given to Laila's application during 2002 after it had been made on and dated 22 January 2002. It must have been considered at some stage during 2002 because, on 7 December 2002, the SSHD refused Yakub's dependency claim that was included in that application. The disclosed documents did not include the refusal letter so that it was impossible to ascertain the SSHD's grounds for that refusal. However, it was possible to see that an application was made on Yakub's behalf that that refusal should be reconsidered. It was not possible to ascertain whether Yusuf's application was refused at the same time since the relevant documents have been lost or have not been disclosed but it must have been refused and that refusal must have been reconsidered at the same time as Yakub's application was refused and reconsidered since the SSHD would not have decided and reconsidered one of the brother's applications separately from its consideration of the other's. Moreover, it is clear, from documents that were disclosed that the SSHD reconsidered refusal decisions for both Yusuf and Yakub during 2003 and there is no record of that reconsideration being concluded in either case.
- On 2 March 2003, Yusuf then aged twenty, was at a BP petrol station in Reading with two Asian friends when they came into contact with a group of ten young males who were unknown to any of them. This group of white youths started to make racist remarks to the three Asians which led to a fight between the two groups. In the course of this fight, police officers arrived and Yusuf was arrested and charged with GBH, affray and two counts of common assault. The submitted evidence does not reveal who else was charged or any further details of the melee that had occurred. A note on a SSHD Criminal Casework Directorate ("CCD") Screening Interview Request Form dated 25 September 2014 states that there were warnings on Yusuf's Police National Computer print out to the effect that he might be violent and might have used glass as a weapon during this incident. The SSHD did not disclose this print-out but, in any event, there is no other evidence of Yusuf's use of glass during the affray and his lenient sentence would suggest that no glass was used.
- The SSHD's appears to have considered Laila's application over a three-month period starting in December 2002. In early March 2003, it advised her that she should not apply for LTR since she would soon be entitled to apply for British citizenship and to be registered as a British citizen with a right to settle in the UK pursuant to section 4B of the BNA 1982 which was about to come into force.
- Karen gave birth to her and Yusuf's son on 27 April 2003. Both Karen and their son are British citizens who were born in the UK. In June 2003, Yakub left school having completed his GCSE exams and he moved to Peterborough to live with Yasin and undertake a level 1 plumbing course. By then, it is clear from the evidence that the Said family of four had reunited. Their reconciliation had been a gradual one but it is clear that it had been fully achieved well before Yakub left school. The family home was in a rented house in Orton Malborne in Peterborough and Laila spent much of her time in rented accommodation in Reading where Yusuf was also living most of the time. She was the principal bread winner whose nursing work and nursing degree studies were in the Reading area whilst Yasin spent all his time in the family home in Orton Malborne due to his business being based in the Peterborough area. Yusuf and Yakub split their lives between Peterborough and Reading. On 10 September 2003, Yusuf was convicted of his third and last driving offence namely of being in charge of a vehicle with excess alcohol and uninsured and was fined.
- [*] On 30 April 2003, section 4B of the BNA 1982, introduced by section 12 of the NIAA came into force. This provided that:
"12 British citizenship: registration of certain persons without other citizenship
(1) The following shall be inserted after section 4A of the British Nationality Act 1981 (c.61) (registration as British citizen)-
"4B Acquisition by registration: certain persons without other citizenship
(1) This section applies to a person who has the status of:
(a) British Overseas citizen, …
(2) A person to whom this section applies shall be entitled to be registered as a British citizen if-
(a) He applies for registration under this section,
(b) The Secretary of State is satisfied that the person has not after 4th July 2002 renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality."
- It followed that BOCs in Laila's position were provided with the right to British citizenship coupled with the right to settle in the UK once they had applied for British citizenship under section 4B if they had no other citizenship or nationality and had not voluntarily relinquished or lost any non-British citizenship after 4 July 2002 through either their action or inaction. If these conditions were met, the BOC was entitled to British citizenship and the SSHD had no discretion to refuse to register that person as a British citizen. Since Laila had applied for registration under section 4B and had not lost any other citizenship or nationality, the SSHD was obliged to grant her British citizenship. This change in the law was particularly intended to provide a solution for those such as her who were BOCs who had been living in Kenya but who had lost the right to reside there and who were, in consequence, effectively stateless unless they were able to settle in the UK.
- Laila accepted the advice she had received from the SSHD with alacrity and applied to be registered as a British citizen on 13 May 2003, some 2 weeks after the commencement date of section 4B of the BNA 1982. She also applied or was treated by the SSHD as having applied in the same application for her sons to be granted ILR as her dependants under the IRs. This separate application would have been received by the IND but in all probability by a different Directorate or section concerned with citizenship and naturalisation than the Directorate or section that had been dealing with her fresh claim. In Yakub's case, she made this further application on the basis that he was a child dependant since he was still under 18 and in Yusuf's case on the basis that he was still living with and dependant on his mother although he was 20. These applications were received by the SSHD soon after they had been sent and it treated them as superseding Laila's earlier applications dated 22 January 2002.
- The SSHD received representations that were dated 26 May 2003 and 30 June 2003 on behalf of Yusuf and in relation to its reconsideration of its refusal of Yusuf's application in December 2002 . It seems that these representations, or others submitted at the same time, also related to Yakub's similar application that the refusal decision in his case should be reconsidered. These representations were based on Laila's application to be registered as a British citizen and to be granted British citizenship and the right to settle in the UK and on their dependency on Laila as their mother. Yet further representations on Yakub's and Yusuf's behalf were received by the SSHD on 8 November 2003. The SSHD considered this plethora of representations but never concluded their applications for reconsideration of their refusal decisions of December 2002.
- Laila's grant of British citizenship should have taken effect on 30 April 2003 but the certificate of registration was only served on her after it was issued on 13 October 2003 so that it took effect on that later date.
- In May 2004, the caseworker dealing with the applications sent a security check request to the Criminal Cases Unit ("CCU"), which was a previous name of the Criminal Cases Directorate ("CCD"). The nature and timing of this request suggests strongly that the caseworker was minded to grant Yakub ILR. On 26 May 2004, the CCU as part of that security check sent an enquiry to the Immigration and Nationality Enquiry Bureau ("INEB") about Yakub's current immigration status and on 4 July 2004 the INEB informed the CCU that Yakub was an overstayer but that he had an outstanding application for LTR that had not yet been finally resolved.
- Laila's acquisition of British citizenship and the right to settle in the UK meant that her application for LTR did not have to be decided and was simply forgotten about but neither Yusuf and Yakub's dependency applications for LTR or ILR were ever formally dismissed, decided, refused or withdrawn. Since the relevant files have been lost, it is not possible to ascertain any further details about the nature and extent of the SSHD's consideration of these LTR and ILR applications. I conclude that Yusuf and Yakub's original claims for LTR dated 22 January 2002 were treated by the unit considering them as having been superseded by their claims for ILR and settlement that were based on Laila's British citizenship and that these ILR and settlement claims were never subsequently decided or withdrawn.
- Yakub was unable to obtain a plumbing apprenticeship because he could not provide himself with transport since he was not permitted to obtain a driving licence, he could not obtain a college place due to his and his family's lack of money and his inability to obtain student finance and he could not obtain employment all of which were the direct result of his lack of immigration status. He therefore lived in the family home with Yasin and assisted him in his car repair business once he had left school in the summer of 2003. Meanwhile, Yusuf lived most of the time in Peterborough with Laila and was working casually, as he has ever since, as a bricklayer, roofer and fabricator.
126.96.36.199. Delay - Laila
- Nothing was done to process Laila's claim for at least 12 months after it had been lodged in January 2002. It appears to have been initially considered in late 2002 some months before section 4B of the BNA 1982 had come into force. Once that consideration started, the caseworker who was undertaking it realised that Laila would be a direct beneficiary of that new statutory once it came into force. At that point, she became entitled to British citizenship, to be registered as a British citizen and to settle in the UK. The SSHD informed her of that entitlement in early March 2003 and invited her to submit an application for British citizenship. She prepared and submitted an application and as part of it also made or was to taken to have made an application for ILR on behalf of her two sons as her dependants. However, although the SSHD received and her application on 16 May 2003, she was only informed that it had been accepted when she received her registration certificate from the SSHD dated 13 October 2003.
188.8.131.52. Delay - Yasin
- Yasin's application dated 3 December 2002 was never either considered or decided by the SSHD even though it acknowledged its receipt. The SSHD should have been linked it with Laila's fresh claim dated 22 January 2002 and both applications should have been considered together. Had that occurred, it is likely that Yasin would have been granted ILR as the spouse of a British citizen who was present and had settled in the UK at the same time as Laila was granted British citizenship. The SSHD never provided an explanation as to why Yasin's application was never considered with Laila's application or at all.
184.108.40.206. Delay - Yusuf
- Because the relevant sub-file containing details of the consideration of Yusuf's applications dated 22 January 2002 and 13 March 2003 have been lost, it is not possible to ascertain the details of the decision-making process in Yusuf's case. However, his case was different to Yakub's case because he had become an adult on 21 December 2000 so that he was no longer Laila's dependent child when she submitted her fresh claim on 22 January 2002. Furthermore, he had been arrested on or about 2 March 2003 on suspicion of having committed GBH and assault and for being involved in an affray on 2 March 2003. There is, however, no evidence of the SSHD's consideration of Yusuf's applications or of how it would have decided it in the light of his being an adult who had been charged with GBH and affray. It is obvious however that his first application was refused in December 2002 and that that refusal decision was withdrawn by the SSHD, that his first and/or second applications were considered or reconsidered during 2003 at the same time as Yakub's applications were considered or reconsidered and that no decisions were ever taken in relation to either application.
220.127.116.11. Delay - Yakub
- The consideration of both of Yakub's dependency applications took place spasmodically throughout this period. The consideration of the first application led to an initial refusal in late 2002. His solicitors requested a reconsideration of that refusal and the SSHD appears to have withdrawn that refusal decision and to have embarked on its reconsideration. Laila made a further application on his behalf dated 13 May 2003. His solicitors sent the SSHD submissions on his behalf dated 26 May 2003 and 30 June 2003 in connection with either or both decisions and then sent yet further submissions which were received by the SSHD on 8 November 2003. The SSHD considered these submissions in early 2004 and it is clear that the relevant unit was minded in about May 2004 to grant him ILR as Laila's dependant subject to satisfactory final security checks being returned. However, possibly because of the receipt of his further dependency application as part of Yasin's application dated 1 September 2004, no decisions appear to have been taken in relation to either application.
18.104.22.168. Causes of delay
- The SSHD delayed for six months in informing Laila that she had been granted citizenship after she should have been granted British citizenship soon after 30 April 2003. Both Yusuf and Yakub's applications could and should have been decided in their favour at the same time as or soon after Laila was granted British citizenship on 13 October 2003. Thus, an overall delay of about 13 months occurred between May 2003 and 2 June 2004 as a result of the SSHD's unexplained failure to grant Laila British citizenship in May 2003 soon after she applied for its registration and to consider and grant Yusuf and Yakub's applications at the same time. It is highly likely that Yasin would have been granted ILR as the spouse of a settled British citizen had his application been considered as it should have been in May 2003, that Yakub should and nearly was granted ILR in May or June 2004 and that Yusuf should have been granted LTR at the same time, this lesser grant being explained by the fact that he was in custody for at least part of that period awaiting trial on charges of GBH and affray.
- In summary, therefore, there appears to have been up to 13 months delay between May 2003 and June 2004 caused by the SSHD's unexplained inaction or undue slowness in implementing the grant of British citizenship to Laila followed by the inactivity that led to Yasin, Yusuf and Yakub's applications not being decided in this period at all.
2.1.5. Period (4): 3 June 2004 – 4 February 2005 – Settlement applications
22.214.171.124. Primary facts
- By June 2004, Laila, Yasin, Yusuf and Yakub had been resident in the UK for 4 years 10 months. Yusuf was 21 and Yakub was 17 and both were living at home and were entirely dependent on their parents. Both had entered the UK with Laila when aged 17 and 12 respectively on 24 August 1999 as her dependent sons and both were named on her application for asylum as her dependants. This application became appeal rights exhausted on 19 September 2001 and both were named as Laila's dependants in her fresh claim for ILR outside the IRs dated 22 January 2002 and in her application for British citizenship dated 13 March 2003. When Laila was registered as a British citizen on 13 October 2003, Yusuf and Yakub's applications for ILR as her dependants remained undecided and were never subsequently decided or withdrawn. Yasin meanwhile had applied for asylum which was refused by both the SSHD and an adjudicator on appeal and his subsequent fresh claim for LTR outside the IRs remained undecided and it was never subsequently decided or withdrawn. Yasin, Yusuf and Yakub were completely in the dark as to the progress of their applications for LTR and ILR because the SSHD had not considered it necessary to provide the applicants with any information about the progress of any of them.
- Given those circumstances, Yasin and Laila took advice and in the light of that advice decided that Yasin would apply for ILR as the settled spouse of a person, namely Laila, who was present and settled in the UK in an application in which he would name both Yusuf and Yakub as their dependants. On 2 June 2004, Laila signed a SET(O) form to confirm that she was Yasin's spouse and that Yakub was both their child and was still under eighteen and Yasin also signed this application and submitted it to the SSHD who added it to his file S1035356. The dependency applications for Yusuf and Yakub would have been added to their respective existing virtual sub-files S1028806/002 and S1028806/003 respectively.
- This application was voided as being inappropriate because Yasin had applied on a form appropriate for an application for ILR by a settled dependant of someone who was present and settled in the UK whereas the basis of his application was that he was the settled dependant spouse of his wife who was present and settled in the UK. Furthermore, Yusuf could not be named as a dependant in Yasin's application given that he was an adult aged twenty-one.
- In consequence, Yasin submitted a further application on 12 August 2004 on the appropriate form, being a SET(M) form, naming only Yakub as his and Laila's dependent child. This was an application for ILR and settlement within the IRs as the spouse of someone who was settled and present within the UK.
- Meanwhile, Yusuf, also on 12 August 2004, submitted a SET(O) application for ILR within the IRs or possibly outside the IRs. The form described his application as being made as an 'other dependant outside the IRs' but it sought ILR and settlement and was on a SET(O) form appropriate for an application within the IRs for an "other" dependant, albeit that its grant was subject to the exercise of discretion provided for by the IRs. It was based on Yusuf's mother being a British citizen who was both settled and present within the UK and on his having come to the UK with his family to settle here with no family living elsewhere.
- The two applications were recorded as having been received by the MM section of the SSHD on 20 August 2004 although they were date stamped as having arrived with the SSHD on 16 August 2004. The SSHD accepted the applications as being valid, paid and linked applications and they were placed on Yasin's file S1035356 and Yusuf's would also have been placed on his virtual sub-file S10235356/002 and Yakub's on his virtual sub-file S10235356/003.
- On 20 August 2004, Yusuf was sentenced for the criminal offences he had committed on 2 March 2003. Only limited evidence about the circumstances of these offences was adduced at the trial but such as was adduced had been known to the SSHD when it took the decision to refuse Yusuf's application in November 2014. That evidence contained little detail about the nature and circumstances of his offences, of his mitigation or of his current criminal propensities or risk to the public. The evidence that was available showed that he had spent a period time on remand in custody and to have entered guilty pleas at some stage. He was sentenced for GBH, affray and two counts of assault and was given an eighteen-month sentence. He was released from prison six and a half months later on licence on 7 March 2005. He was entitled to release after serving half his sentence but it is likely that he was released earlier by the prison Governor for his good mitigation and behaviour since he was released four and a half months before he had reached the halfway point in his sentence. There was, however, no evidence of how his release date was arrived at. The SSHD never attempted to obtain further details of his offence or the nature and seriousness of his offending behaviour and his mitigation or to obtain copies of relevant documents that would reveal these significant facts. In particular, no attempt has ever been made to obtain a copy of the judge's sentencing remarks, Yusuf's pre-sentence report or the witness statements served by the prosecution before his trial.
- Since the SSHD never attempted to ascertain the basis of sentence, it is only possible to reach conclusions as to the mitigation that applied to Yusuf's case by taking judicial notice of the matters that a sentencing judge had to take account of and the sentencing guidelines that he had to take as his starting point. It is clear therefore that the sentencing judge must have considered that the nature of Yusuf's offences was such that a lenient view should be taken about them. The sentencing guidelines in force in August 2004 provided that the starting point for his sentence should have been four years for the GBH. For the affray, charged under section 3 of the Public Order Act, the maximum sentence for affray charged on indictment was three years unless the affray created a significant risk of serious harm. However, given the relatively light sentence that appears to have been passed, it would seem that the affray was only charged on indictment because it was linked to a charge of GBH which had to be charged on indictment. Had Yusuf's offence of affray been such that it had been charged on its own, it seems likely that it would have been tried summarily by the magistrates and that the maximum sentence that would have been passed would have been a non-custodial community order.
- The sentencing judge, in arriving at the actual sentence of eighteen months must also have taken into account the length of time he had spent in custody on remand, his guilty plea, his youthful age and the fact that these were his first offences of violence. These factors would have led to a discount from the starting point for his sentence but unless there were further mitigating circumstances, the final sentence would still have been significantly in excess of eighteen months in prison.
- Thus, it would seem from the total length of the sentence that was passed that the sentencing judge must have considered that there were significant mitigating factors present. Given what is known of the circumstances and background to the offences for which he was sentenced, those factors appear to have included the fact that he had been provoked by offensive racial abuse, did not initiate the violent incident, was on the edge of the affray, was not considered to have been part of a joint enterprise and showed genuine remorse. It seems highly unlikely that the sentence would have been as short as it appears to have been unless the sentencing judge concluded that mitigating factors of that kind were present.
- Unit ICS12 within the Managed Migration section of the IND acknowledged receipt of Yasin and Yusuf's separate applications in identically worded letters dated 9 September 2004. The letters described the applications as being for a variation of LTR in the UK which was an error since their LTR had expired in February 2000 some four and a half years previously when each had become appeal rights exhausted on 22 October 2002 (in Yasin's case) and 19 September 2001 (in Yusuf's case). Instead, the applications were being submitted by the dependent spouse and two dependent sons of a British citizen who was both settled and present in the UK in circumstances where all three applicants were present and resident and seeking settlement in the UK. These letters also stated that the applications would immediately be passed to a caseworker to check their validity and once they had been validated, SSHD's consideration of them would begin. The letters continued:
"We should deal with postal applications within 13 weeks at the most from when we receive them in IND. We aim to complete 70% of postal applications within 3 weeks of receiving them in IND.
Please note that requests to speed up consideration will only be considered in exceptional circumstances and where there is documentary evidence of a need to travel in an emergency."
- The SSHD's case as to the meaning and effect of its wording of its notification of this target date was set out in the only witness statement that the SSHD served. This was made by Mr David Wiggins and was dated 12 December 2014. He was an Executive Officer who was then currently working in the unit 14 of the Older Live Cases unit ("OLCU") that finally decided Yasin and Yakub's applications in October 2014. Mr Wiggins had not been concerned with these applications at any stage prior to his involvement not long before they were determined. He stated that the target date statement in the acknowledgement letters could conceivably have meant that the SSHD would look at the applications in a timely manner but would not necessarily make a decision on them. This interpretation of the statement is not supported by the entry in the GCID log which stated that the thirteen week target date for the applications was 20 December 2004.
- Mr Wiggins' interpretation of the SSHD's target date statement is untenable. The objective meaning of the wording of the acknowledgement letters and the SSHD's internal file note is clear and is to the effect that the applications would be considered and determined within thirteen weeks of their acceptance as valid applications.
- A caseworker in the ICS12 unit validated the applications on 20 September 2004 and noted on the GCID Case Record Sheet that the thirteen-week target date by which time they would have been determined was 20 December 2004. On 28 September 2004, the caseworker recorded that Yasin's file number was S1035356 and Yusuf's file number was his original virtual sub-file S1028806/002 in Laila's file. The caseworker also opened a virtual sub-file for Yakub being S1035356/003 even though his original virtual sub-file S1028806/03 was still in existence. She then directed that the two applications should be linked and passed to the LSCU6 unit for determination. This unit was concerned with enforcement cases being cases involving illegal entrants or people who had overstayed following the expiry of their LTR.
- Although all three applicants were overstayers, their cases were not enforcement cases but were instead settlement applications made by a spouse and dependants where both the spouse and dependency elements related to someone who had recently been granted British citizenship who was settled and present in the UK under section 4B of the BNA of 1982. Moreover, in the cases of Yusuf and Yakub, their applications were already being considered by the SSHD as part of Laila's and their earlier applications dated 22 January 2002 and 13 March 2003. The close relationship between these two linked applications and Yusuf and Yakub's unresolved dependency applications was such that the appropriate unit to allocate them to would have been the same unit as was already dealing with Yusuf and Yakub's earlier applications and which had already dealt with Laila's British citizenship application. Furthermore, Yasin's earlier and still unresolved human rights application should also have been re-allocated to the same unit, since it was closely related to all these earlier applications all of which should have been decided together as linked applications.
- In short, although these two applications were correctly linked, they should also have been linked to Yasin's outstanding LTR application and Yusuf and Yakub's outstanding ILR dependency applications and having been so linked, in Yusuf and Yakub's cases, given their respective existing virtual file numbers. Physical copies of each of these two applications should have been placed on Laila's principal file and neither of them should have been categorised as enforcement cases.
- Yasin and Yusuf's linked applications were not considered or decided by unit LSCU6 within the stipulated thirteen-week timescale because of the increasing enforcement workload that LSCU6 was confronted with at that time. However, this was not explained to them and the existence of this difficulty only came to light when the SSHD disclosed the relevant note on the GCID log in 2014. Yusuf was released from prison on licence on 7 March 2005. He met his son for the first time and found that his partner was pregnant with another child by another man who had refused to have any involvement with this child. However, their relationship resumed and he agreed that he would accept parental responsibility for this child, a boy, who was born on 13 November 2005.
- In this period, Yasin's and Yusuf's settlement applications and Yakub's dependency application that formed part of Yasin's application were prepared, submitted, accepted by the MM section of the IND based in Lunar House, Wellesley Road, Croydon as valid applications, filed and dispatched to unit LSCU6 with a clear indication that they would be decided within thirteen weeks, namely by 20 December 2004. Meanwhile, on 15 August 2004, Yusuf was sentenced to eighteen months imprisonment with a release date on licence of 7 March 2005 and a sentence end date of 7 January 2007.
126.96.36.199. Causes of delay
- The SSHD provided no evidence to explain why these two applications were dealt with as enforcement cases when they were in fact settlement cases that were linked to a British citizenship settlement case or whether the thirteen-week estimate of the time within which these applications would be determined was reasonable at the time that it was given. Furthermore, there was no explanation as to why the SSHD did not notify Yasin, Yusuf and Yakub that the original estimate had to be revised or give them a revised long-stop date for the decisions in their cases. It is clear from the SSHD's letter that provided this estimate that it was based on current working experience within the MM section. If the unit to which the applications had been assigned was experiencing work-flow difficulties, a new and realistic end-date should have been provided and the applicants should immediately have been informed of that new date. There is therefore no evidence to displace the assumption that the failure to take decisions in these two applications by 20 December 2004 occurred because of the inefficient way that the SSHD was processing applications being considered by the MM section at that time and, possibly, to a small degree, because of an increased work flow created by increase in the number of enforcement cases that were arriving within the MM section. It was also caused by the SSHD's failures to reach decisions in all three of the Saids' cases in 2003 and in not referring their 2002 applications to the same Directorate as was dealing with Laila's citizenship application and then linking all their applications together to be decided by that Directorate.
2.1.6. Period (5): 5 February 2005 – 31 January 2007 – Family exercise
188.8.131.52. Family exercise - introduction
- A one-off initiative popularly known as the family exercise was underway at the start of this period. Its origins dated back to an announcement made by the then Home Secretary on 24 October 2003. The terms of the exercise were set out in the ACD's standard letter sent to every applicant or potential applicant thereafter and were as follows:
"The Government has announced an exercise of all family applications for asylum lodged prior to 2 October 2000. Under the terms of the exercise, asylum applications lodged prior to 2 October 2000 which include at least one dependant aged under 18 … in the UK on 2 October 2000 or 24 October 2003 who is still regarded as part of the family unit will be considered for a grant of Indefinite Leave to Remain or Enter or Remain (ILE/R, or settlement) in the United Kingdom.
- The family exercise was administered by the ACD which was part of the IND and was based in the Whitgift Centre, Croydon. The standard instructions provided to caseworkers who were sifting family exercise applications included the requirement that the caseworker should check that all papers relating to the main applicant were present and linked to the main file. This instruction carried with it the obvious corollary that the caseworker had to obtain all relevant files to enable a full check as to the eligibility and suitability of each family member for ILR under the family exercise.
- Only a limited number of potentially eligible families applied for consideration under the family exercise after the Home Secretary's announcement. As a result, the ACD undertook a trawl through its records to identify those who appeared to qualify for this one-off grant of ILR and in the period after August 2004 it contacted all potentially eligible family asylum seekers that that trawl disclosed. Laila's asylum application dated 3 December 1999 was unearthed in about January 2005, possibly as a result of the SSHD's receipt of Yasin and Yakub's applications for ILR and settlement on 1 September 2004, and she was written to on about 4 February 2005 and invited to claim asylum for herself and her two sons. The letter enclosed a family questionnaire on which the DHSS had inserted a requirement that it had to be filled out and returned to the ACD by 16 March 2005 and had inaccurately described Laila as being a "British National (Overseas)". She was in fact a "British Overseas Citizen" at the time of her asylum application but had been granted British citizenship by the Directorate or section within the IND dealing with nationality and citizenship sixteen months before the ACD wrote to her in early February 2005.
184.108.40.206. First family exercise application
- Laila submitted a family exercise application on 10 March 2005 by completing the questionnaire she had been sent with the assistance of her then legal representative. She answered the question concerned with the details of her dependants by naming Yasin, Yusuf and Yakub accompanied by the required details about each of them. Against Yasin, she entered his principal file number S1035356. She stated in answer to the question about the possible criminal activity of any member of the family concerned:
"Part 1: Details of main applicant and dependants
Below are your details and those of your dependants currently held by the SSHD. Please check the details and carefully amend if necessary.
1.1 Details of main applicant
Forename Surname Nationality HO reference
Laila Yassin Hussein Said British National S1028806
1.2 Details of dependants already notified to the SSHD
Forename Surname Relationship HO reference
Yassin Said Husband S1035356
Yusuf Said Son S1028806
Yakub Said Son S1028806
2.1 Have you or any of your dependants ever been convicted of a criminal offence in the United Kingdom or abroad? If you have answered YES to [this question] please provide full details …
Yes. My son was charged with traffic offence and GBH – Yusuf Yasin Hussein Ahmed Said."
She also ticked the Yes box in answer to the question:
"In order for your case to be considered, you must agree to withdraw any other outstanding applications you may have made to the Immigration and Nationality Directorate if you are granted Indefinite Leave to Enter or Remain in the United Kingdom.
This may include:
• Your outstanding asylum claim
- Any other applications requesting leave to remain (for example … on the basis of marriage to a person present and settled in the United Kingdom)
YES I wish to withdraw my outstanding applications if I am granted indefinite Leave to Enter or Remain in the United Kingdom."
- The SSHD responded rapidly to this application when it received it. In a letter dated 21 March 2005, it rejected it as being inadmissible on the grounds that she had been granted British citizenship on 13 March 2003. The decision was given by reference to Laila's principal file S1028806. Laila's complete file should have included Yusuf and Yakub's virtual sub-files, her physical sub-files, Yasin's linked file and copies of each of the seven immigration applications which she and her family members had previously made. However, this decision was taken by the caseworker without first obtaining and perusing Yasin's file as is clear from the fact that that file was still held by unit LSCU6. It was also taken without considering the seven previous applications.
- The decision was therefore taken without reference to highly material facts about Laila and Yasin's asylum applications and their and their sons' other applications and family circumstances. It was also based on the erroneous premise that the applicant for the anterior family application for asylum had to be the same person as the main applicant in the application under the family exercise and that that applicant could not be someone who had been granted British citizenship and the right to settle in the UK after she had unsuccessfully applied for asylum.
- The erroneous nature of the decision can be seen by considering the wording describing a family's eligibility for the family exercise. This required that: (1) there had been a family application for asylum lodged before 2 October 2000 that included at least one dependent child under 18; (2) the child dependant or dependants was or were still regarded as part of the family unit at the date of the family exercise application even if at that later date that dependant or those dependants was an adult or were adults and (3) if the principal applicant was granted ILR, that applicant would withdraw any other outstanding immigration applications that he or she might have made to the IND.
- All three conditions were satisfied by Laila's application because: (1) Laila had made an application for asylum on 6 October 1999 in which Yusuf and Yakub were named as her dependants. At that time, Yusuf was 17 and Yakub was 12; (2) Yusuf and Yakub were both still regarded as part of the Said family unit at the date of Laila's family exercise application and (3) Laila's outstanding application dated 22 January 2002 for Yusuf and Yakub to be granted ILR as her dependants had not been withdrawn.
- Furthermore, Yasin was still a member of the family comprising himself, Laila, Yusuf and Yakub at the time when Laila made her asylum application even though he was temporarily estranged from Laila. He had come to the UK in order to patch up his and Laila's differences and to try and resolve family problems and achieve a reconciliation with her. He had applied separately for a visitor's visa to permit his entry to the UK on the same day that Laila, Yusuf and Yakub had each applied for their visitors' visas, he had arrived in the UK soon after his wife and sons and had applied for asylum soon after they had. He had succeeded in his objective in coming to the UK since the four family members were reconciled relatively soon after their respective applications for asylum had been made and they were living in the UK as a family unit and had been for some time.
- The phrase "family application" that was used by the SSHD to describe the initial asylum application that had to be made to enable a valid application to be made under the family exercise was not further defined. That phrase was used as a generic description to describe the newly introduced procedure for facilitating a family group that had claimed asylum and who wished to settle as a family in the UK. The group had to have included at least one child and must have arrived in the UK before October 2003 and then have claimed asylum and must have continued to reside and still be residing in the UK in 2003. The intention of the policy was to speed up the process of obtaining settlement for those, including those whose asylum applications had failed but who were still living in the UK, who had been living in the UK for some time and whose child or children had settled to the way of life in the UK to apply for ILR and settlement. It was therefore appropriate to describe the situation in this case where all four family members of the Said family had made what on the facts of their case was a single composite family application for asylum albeit that that family application had been made by Laila's and Yasin's separate asylum applications on and dated respectively 6 October 1999 and 3 December 1999.
- Thus, the two applications taken together were "a family application for asylum". This conclusion was confirmed and reinforced by Laila and Yasin becoming reconciled in 2002, by Yasin applying for ILR on 1 September 2004 as Laila's spouse and by Laila had naming him as one of her dependants in her family exercise application on dated 10 March 2005.
- It follows that the caseworker considering Laila's family exercise application in March 2005 should have considered that Yasin, Yusuf and Yakub were eligible to apply for ILR under the family exercise and then have considered whether Yusuf's conviction for GBH, affray and two counts of assault rendered ineligible for being granted ILR under the family exercise.
220.127.116.11. Second family exercise application
- Laila did not contest or seek a reconsideration of the SSHD's rejection of her family exercise application. Instead, she supported Yasin's decision to submit a family exercise application for himself as the main applicant with Laila named as his wife and Yusuf and Yakub as his dependent children. This submission was made on the advice of different solicitors to those who had advised Laila and they wrote to the ACD on 5 April 2005 stating that the application that had made by Laila should have been made by Yasin as the main applicant since he had applied for asylum in December 1999 and he qualified as an applicant under the terms of the family exercise. The letter requested the SSHD to treat Laila's application as being varied so that Yasin was named as the main applicant instead of her and to reconsider the application on that basis. The SSHD neither responded to this letter nor reconsidered the application on the suggested amended basis.
- Meanwhile, in a separate development, Yasin's application dated 1 September 2004 and sent to unit LSCU 6 on 28 September 2004 was sent by that unit with his file S1035356 on 4 June 2005 to a work in progress ("WIP") hold because of the backlog that had built up in that unit due to the increased numbers of cases it was having to deal with. It would seem that Yusuf's application, filed on his virtual sub-file S1028806, was also sent to the WIP hold. The GCID entry that recorded this temporary move stated that unit LSCU 6 would call for the files from the WIP hold as staff were available to deal with them and that any previous instruction about the cases having to be resolved within thirteen weeks could be ignored. The entry also stated that in the event of another unit calling for the file but not actually dealing with the application, the file should be returned to the WIP hold and that the GCID had to be updated with any decision reached. Yasin and Yusuf were not notified of the changed instruction that the thirteen-week timetable was being ignored due to the backlog of work. This transfer of Yasin's file to the GCID hold shows that it had not been transferred to the ACD, being that part of the IND dealing with the family exercise, as it should have been so as to be considered with Laila's and Yasin's successive family exercise applications. The GCID entry also showed that Yasin's application was being wrongly being dealt with as an enforcement case when it should have been dealt with as a spouse settlement case.
- On 13 November 2005, Karen gave birth to a son by another man who was not taking any responsibility for him. Yusuf accepted responsibility for this child and from his birth provided for him financially so far as he was able to.
- Yasin's solicitors chased the ACD for the current position as to Yasin's family exercise application in a letter dated 3 November 2005 having heard nothing from the ACD. The earlier application letter had not been dealt with. A caseworker in unit DTS2 was deputed to respond to this letter and that caseworker noted on GCID that he had not been able to read any notes relating to that application since none had been noted on GCID. He then replied to Yasin's solicitors on 19 December 2005 with a standard family exercise letter that enclosed a family exercise questionnaire with Yasin's name filled in as the main applicant. The questionnaire was returned by his solicitors on 9 January 2006. On 11 January 2006, Yasin's MP wrote to the MP's correspondence address at the SSHD with a request to expedite its consideration of his file. On 17 January 2006, the ACD sent a second copy of the family exercise questionnaire to Yasin's solicitors, presumably because it was unaware of its receipt of his answers to the first copy of the questionnaire. His MP's letter was answered by the Director General of the IND on 30 January 2006 who stated that the IND hoped to have completed consideration of "the majority of cases" being processed by the family exercise teams by the end of April 2006. Finally, on 14 February 2006, Yasin's solicitors returned the second completed family exercise questionnaire to the ACD.
- Meanwhile, on 1 February 2006, it was noted on GCID that Yasin's file had been sent to despatch for some unexplained reason but that the file had been tracked back to the WIP hold. However, there is no other evidence that the file which had been sent to the WIP hold in June 2005 and then sent from there to despatch on an unidentified date a few months later had in fact been returned to the WIP hold. Given the further subsequent recording on a Lost on File proforma on 12 October 2007 of the disappearance of Yasin's file, it seems likely that the Yasin's file had been lost during its journey to despatch in late 2005 or early 2006 and that all that was noted on 1 February 2006 was the discovery of the record of the file having been located in the WIP hold in 2005 before it had been sent to despatch. It follows that all subsequent consideration of Yasin's application took place without any consideration of file S1035356 since that file had been lost and its contents had not been placed on Laila's file. It is clear, in support of this conclusion, that all relevant documents and log entries relating to this application that were generated in the years since 2006 were placed on Laila's file and that that file was treated as being both her and his principal file.
- Laila qualified as a nurse in March 2006 when aged fifty having successfully completed her nursing degree course. This was a remarkable achievement given her family responsibilities and her full-time working as an auxiliary nurse in addition to her work undertaking her degree course. She obtained a post in Wexham Hospital and rented accommodation in Slough where she and Yakub stayed most of the time. Both returned to the family home in Peterborough as often as Laila was able to return there.
- On 30 June 2006, the ACD informed Yasin's solicitors, some fifteen months after Yasin's application had been submitted originally that "your client (sic)" did not qualify under the family exercise because Yusuf had an unspent criminal conviction according to the security checks that had been undertaken. The check that was referred to was a PNC criminal records check. The letter asserted that the terms of the exercise did not apply to a family where the principal applicant or any dependants had a criminal conviction.
- This decision had been based on a caseworker's consideration of Yusuf's PNC on 30 June 2006. It was, or should have been known to the family exercise team from March 2005 onwards that Yusuf had criminal convictions since his arrest and charges were referred to by Laila in the questionnaire she filled out at that time. That caseworker filled out the checklist that was used by caseworkers screening family exercise ILR applications to determine whether they qualified with this disqualifying factor which was the only one to be ticked: "The applicant's dependant … has failed PNC." This annotation showed that the SSHD had given family exercise caseworkers instructions to disqualify a family application if its main or any dependent applicant had an unspent conviction, certainly one as serious as GBH although it is not clear whether that instruction included minor convictions such as traffic offences. It was clearly lawful for the relevant policy to require an applicant with an unspent conviction to be disqualified from the fast tracking involved in the family exercise but its existence and scope were not published by the SSHD as they should have been. Had they been published in this way, neither Laila nor Yasin would have included Yusuf in this family exercise.
- The published admissibility criteria for the family exercise policy did not state expressly that the criminal conviction of one dependant member of the applicant family disqualified all other members of that family from applying for ILR under the family exercise. The ACD's decision letter dated 30 June 2006 asserted that this was the case but this was an illogical and disproportionate stipulation since the application could be resubmitted with the dependant with a criminal conviction having been omitted from it. Since this aspect of the admissibility criteria was not set out in any publically available or disclosed document, I conclude that this interpretation of the policy was no more than an unjustified internal unlawful unpublished direction. Thus, only Yusuf's name should have been removed from the application so that consideration of both Yasin's and Yakub's applications continued and the applications were decided under the family exercise.
- It is clear that the family exercise was operated on the basis that the main applicant had to be applying for ILR along with the other family member dependants included in that application. However, it is notable that the checklist that caseworkers were provided with did not include a disqualifying factor that the main applicant had to have been an applicant in the same asylum application as those dependants. It is also notable that the only ground for disqualifying Yasin's application was that Yusuf had unspent convictions so that the caseworker accepted that the application was one that otherwise qualified for consideration for the grant of ILR to those included in it. In other words, the application was accepted to be one that was based on a previous family application for asylum even though this had been made in two separate but linked applications that had both been made prior to 2 October 2000.
- It is also notable that the refusal letter was headed "Re Mr Yasin Said, Mr Yusuf Said and Mr Yakub Said" and was sent under the reference S1028806. This was the first time that Yasin's two applications for ILR date 1 September 2004 and 14 February 2006 had been dealt with under Laila's primary file and not under Yasin's separate primary file S1035356. All subsequent correspondence and decision-making was undertaken by the SSHD on behalf of Yasin, Yusuf and Yakub under the reference S1028806. This is further confirmation that Yasin's family exercise application was one for a family group comprising all four Saids.
- It follows that Yasin's application for ILR for himself and Yakub as his dependant should not have been disqualified and that only Yusuf should have been disqualified by his criminal record from applying for ILR under the family exercise. The caseworker should have admitted Yasin and Yakub's family exercise application as a valid application and then have gone on to consider and decide the application. There did not appear to be any reason for the caseworker to refuse to grant both of them ILR and the right to settle in the UK under the family exercise as Laila's dependants.
18.104.22.168. Third family exercise application
- An SSHD caseworker undertook an internal review on 13 August 2006 of its decision dated 30 June 2006 to exclude the entire family application as a result of Yusuf's criminal conviction and noted on Yasin's file that the Said family had been considered for the family exercise but did not meet the criteria "pre the amended policy of 12 June 2006". The disclosed documents provided no further detail to explain why that internal review was undertaken or what the terms of the amended family exercise policy dated 12 June 2006 were. The note continued:
"This applicant [i.e. Yasin's family application] falls to be reconsidered at some point under the amended criteria."
That reconsideration was never completed. All that occurred was that the decision was discussed internally on 14 August 2006 and it was agreed to review the Said family's case two weeks later – that is on 30 August 2006. Unaware of this intended review, Yusuf, through his solicitors White Ryland, wrote to the ACD on 18 August 2006 in response to the SSHD's refusal decision dated 30 June 2006 and provided detailed representations that included details of his conviction and prison sentence and sought a reconsideration of the decision. The letter contained this passage within it:
"10. Our client also believes that my life would be at risk in Kenya if he were to return to Kenya on account of my ethnic background. I would never be accepted as a Kenyan and would always be regarded as an Asian. I, therefore, would be prone to racist attacks by the local Black Kenyans."
- This passage is an obvious paraphrase of written instructions provided by Yusuf that were not converted into the third person in the letter-drafting. Many years later, in September 2014, the SSHD contended that these words gave rise to a fresh claim for asylum by Yusuf and purported to arrange a screening interview for him having served him with notification of a requirement to attend an asylum screening interview. This notice was subsequently withdrawn after Yusuf's solicitors denied that he had ever made a fresh asylum claim. It is clear from an objective reading of the passage relied on by the SSHD that Yusuf was not making a fresh asylum claim and that the SSHD's contention that Yusuf had made one was wholly untenable.
- Yasin, also through White Ryland, responded to the SSHD's refusal of his application for ILR in a letter dated 22 August 2006. The letter provided details of Yasin's and Laila's separate travel arrangements to the UK in 1999 and their subsequent immigration history, asked for a reconsideration of the decision dated 30 June 2006 and sought details of what progress had been made in considering his separate application dated 1 September 2004. Finally, the letter asked that Yusuf should be excluded from Yasin's family exercise application.
- The intended internal review or reconsideration that was due to take place by 30 August 2006 did not take place – it would appear because of the request to exclude Yusuf from the application set out in White Ryland's letter that would have been received on 29 August 2004. The letter led to a further file note that asked the appropriate caseworker to reconsider the decision to exclude the family but that reconsideration also never took place.
- White Ryland on behalf of Yasin sent SSHD a further letter dated 11 September 2006 informing it that Yusuf no longer resided in the family home but resided at a stated address in Peterborough with his partner and their children.
- White Ryland wrote a further letter dated 28 November 2006 on behalf of Yasin asking for an update on the present position with regard to his family exercise application. This received an immediate response from a caseworker from Block C of the IND Workflow team, which was separate from the ACD and was based in a different building to it. The response was contained in a letter dated 1 December 2006 and was in these terms:
"I am writing to acknowledge receipt of your letter dated 28 November 2006.
On the 19th July 2006, the Home Secretary announced to Parliament that the IND had a legacy of some 400,000 case records and that the aim would be to clear them within 5 years. I can confirm that your client's case falls into this category but I cannot give any indication at this stage when it will be processed.
Your client's status and entitlements in this country will remain unchanged until such time as a decision is made on their case."
- The upshot of these exchanges and considerations was that one part of the IND, being the ACD based in the Whitgift Centre in Croydon was reconsidering the refusal of Yasin's application under the family exercise on the basis that Yusuf's name should be excluded from that application whilst another part of the IND, being the Workflow team based in Lunar House in Croydon, decided to refer Yasin's case, which presumably included his failed asylum claim, his human rights claim, his settlement application and his family exercise application, to the legacy exercise. That decision brought the unfinished consideration of the family exercise application by the relevant family exercise team to an end and led to all three of Yasin's outstanding applications being transferred undecided to the legacy exercise.
22.214.171.124. Conclusion – family exercise applications
- Laila's and Yasin's unusual applications for inclusion in the family exercise which they only made because the SSHD advised them that they should be made, gave rise to the following admissibility questions:
(1) Whether Laila could continue to apply on behalf of Yusuf and Yakub once she was granted citizenship;
(2) Whether Yusuf's unspent criminal conviction precluded him from being included in a family application;
(3) Whether a family application could be made on behalf of Yasin and Yakub if Yusuf had to be excluded from that application because of his criminal record; and
(4) Whether Yasin could apply as a principal whilst naming himself as a dependant of Laila and Yusuf and Yakub as his dependants even though his asylum application had not included them as his dependants.
The sparse published details of the family exercise did not answer these questions and the SSHD caseworkers answered the first three adversely. The first and third answers given by the SSHD were clearly erroneous and the second was correct when given but appeared to have become incorrect following the SSHD's amended family exercise policy dated 12 June 2006. The caseworker appears to have answered the fourth question correctly and favourably to Yasin's applications.
- In this period, all three Saids were being considered for the grant of ILR under the family exercise in the ACD based in the Whitgift Centre, Croydon. This consideration was initiated by the SSHD who contacted Laila out of the blue in about February 2005 and invited her to apply under the Family Exercise by filling in and returning the blank questionnaire that was enclosed with the letter. Her solicitors returned her completed form on 10 March 2005. These documents informed the SSHD that Laila had already been granted citizenship and that Yakub had been charged with GBH.
- This application led to three successive considerations of the Said family application under the family exercise.
- The first, as a result of Laila's application, was refused on 21 March 2005 on the grounds that she was ineligible for inclusion in the family exercise on account of her being granted citizenship. The second followed Yasin's solicitors' application in a letter dated 5 April 2005 to have Laila's application varied so that she ceased being a main applicant and he became the main applicant in her place. That application was not responded to. The third was initiated by the chasing letter dated 3 November 2005 that was sent by Yasin's solicitors to the SSHD that sought an answer to its earlier application. The SSHD responded to this chasing letter by sending Yasin a family exercise questionnaire on 19 December 2005 with his name inserted on it as the main applicant. The SSHD informed Laila's MP that that it was anticipated that that application, being the Said family's third family exercise application, would be decided by the end of April 2006. The first completed questionnaire was returned but lost and the second completed questionnaire was returned on 14 February 2006 and on 30 June 2006 the SSHD informed Yasin that the terms of the family exercise did not apply where the principal applicant or any of the dependants had a criminal conviction.
- In addition to its delay in dealing with these applications, the SSHD misapplied the family exercise criteria in at least three significant respects Between 1 July 2006 and 28 November 2006, there was inconclusive correspondence from Yasin and Yusuf's solicitors and an incomplete internal review and reconsideration of Yasin's family exercise application in both its original form with Yusuf included and in its amended form following Yusuf's removal from that application.
- Finally, on 28 November 2006 or twenty-one months after the first family exercise application had been made, a caseworker in the Workflow Team in Lunar House and not the family exercise applications Team being dealt with in the Whitgift Centre, erroneously directed that all three Saids' cases should be transferred to the legacy process. This initiative appears to have been taken in response to the legacy process then being established and was apparently made without reference to or knowledge of the family exercise consideration or the settlement application consideration also being given to the Saids' files. No attempt was made to implement this decision for some months.
- During the family exercise process, background checks were undertaken on both Yusuf and Yasin and, presumably, on Yakub as well although there is no disclosed documentary evidence showing such checks being undertaken in his case. The checks on Yasin disclosed nothing of concern but those on Yusuf disclosed his criminal convictions with the result that all three cases were logged as being transferred into the refusal hold. There is no evidence or a decision being made or communicated in any of them.
- On 31 July 2007, a further PNC check was carried out on Yusuf that led to a note being placed on his file that his convictions were such that he did not currently meet the family exercise criteria but that his case would need to be reconsidered under amended criteria that had been introduced on 12 June 2006. An attempt was made in September 2007 to transfer the Saids' cases to the legacy team in the CRD but it was discovered that Yusuf and Yakub's files and probably Yasin's as well had been lost.
- It is not clear when the cases were transferred to the CRD in Liverpool – or indeed whether that transfer decision was ever fully implemented – since no GCID record showing activity within the CRD has been disclosed or, presumably, is any longer in existence. However, in answer to Laila's MP's letter enquiring about progress, the Deputy Chief Executive of the MPs' Correspondence Section of the SSHD stated in a letter dated 18 March 2008 that Yusuf's case – and presumably Yasin and Yakub's cases – had been transferred to the Liverpool casework unit whose Team Leader was Mr R White. I infer that the transfer, and certainly the formal transfer recorded electronically, occurred on or soon after 1 February 2008.
126.96.36.199. Causes of delay
- The whole period amounted to a delay in the determination of the immigration status of Yasin, Yusuf and Yakub. Their cases should have been decided before Laila was invited to apply for consideration under the family exercise. Moreover, she should never have been invited to apply if the SSHD decision was correct that she was not eligible due to her having been granted citizenship. Furthermore, having applied, her application and Yasin's application should have succeeded in both Yasin and Yakub being granted ILR under the family exercise. This did not occur because of an obvious and significant error by a number of caseworkers in their application of the terms of the family exercise to the facts of their case. Yusuf's case was delayed by it initially being erroneously transferred to the family exercise when it was already known to the SSHD that he had convictions for GBH and affray. Instead, his case should have remained for consideration for ILR with the unit it had been assigned to in September 2004 in the light of his claimed dependency, his convictions and whether it was proportionate to remove him given his mitigation, remorse and rehabilitation.
- The delay between 19 December 2004 and 28 November 2006 was caused by the erroneous decision in January 2005 to invite the Said family to apply to be considered under the family exercise and by the subsequent erroneous decisions taken in deciding that none of them were eligible for consideration under that exercise. Superimposed onto those errors was the erroneous decision taken by a Managed Migration caseworker when deciding to treat the 1 September 2004 applications as being subject to the legacy process which was then being set up and directing their transfer to the CRD. The cases were not legacy cases since they did not fall within its terms of reference. Moreover, they had already been transferred to and were being processed by the ACD under the family exercise and as a result should not have been considered for legacy transfer by the MM section at all. A third error was the failure of Managed Migration, having decided that Yasin, Yusuf and Yakub's cases were legacy cases, then to inform ACD of the need to transfer the applications to the legacy process or to inform the relevant unit within the ACD that it should cease its consideration of them. Finally, neither of the relevant units in the MM section or the ACD concerned with the Said family's various applications logged what they were doing onto the GCID so that each unit's actions did not come to the attention of the other one.
- The result of these further errors was a delay between 28 November 2006 and September 2007 when the cases were in effect in limbo since they were not transferred to the legacy process and were not being effectively decided by the family exercise process. Unfortunately, their eventual transfer occurred just as the reconsideration of the Saids' cases under the family exercise had reached the point when their grant of ILR or DLR under the family exercise appeared to be imminent. A final difficulty was that the further progress of these cases was clearly hampered by the loss of their files which came to light in September 2007 but knowledge of that loss was then buried from view so that no-one else became aware of the loss until 2014.
2.1.7. Period (6): 1 February 2007 – 11 September 2013 – legacy process
188.8.131.52. Primary facts
- The decision to transfer consideration of Yasin, Yusuf and Yakub's cases to the legacy process was erroneous because neither their 1 September 2004 applications nor any previous application after their initial claims for asylum were legacy cases. This was because, although Laila on behalf of Yusuf and Yakub and Yasin on his own behalf had initially made asylum applications which had failed, their positions had changed dramatically once Laila acquired British citizenship. After that had occurred, their subsequent applications for ILR were exclusively based on their dependency on her status as a settled British citizen who was present in the UK. They were, therefore, no longer to be regarded as failed or unresolved asylum seekers but as dependants of a settled British citizen. The transfer decision was disastrous for them since it led to a further delay of seven years whilst their cases languished in the legacy process until they were transferred again, this time to the Older Live Cases Unit ("OLCU"), on 11 September 2013.
- The cases were not immediately transferred to the Case Resolution Directorate ("CRD") following the decision to transfer them. The CRD had been set up in 2006 to deal with outstanding and failed asylum applications using the legacy process and the transfer decision was not communicated to the relevant parts of the ACD family exercise process for some months. In the meantime, the relevant family exercise unit made an applicant background check of Yusuf's PNC on 31 January 2007 which showed, as noted on the GCID also dated 31 January 2007, that he had failed the PNC check. It is likely that a check was also done on Yasin since an internal Applicant Background Check sheet dated 31 January 2007 recorded that a negative check of Yasin's PNC had been made. The note on the GCID for 31 January 2007 also stated that the file, being file S1028806, had been transferred to the refusal hold. It is to be inferred that what was meant by this laconic reference was that Yasin's principal file contained as a physical sub-file in Laila's principal file and the relevant physical and virtual sub-files of Laila's principal file had been transferred to the refusal hold. However, despite the suggestion that there had been a transfer of files to the refusal hold, there is no record of a refusal decision ever having been made nor that such a decision was ever communicated to Yusuf. It is, however, to be noted that his case was not referred to the CCD despite his adverse PNC and there is no evidence to suggest that this non-transfer arose for any other reason than that the file-holder considered that his criminal record was not serious enough to be considered for deportation.
- On 18 May 2007, Yasin's solicitors, who were unaware that his application for a review of his family exercise refusal decision remained for consideration by the family exercise team, wrote to the IRC at its Lunar House address requesting an Asylum Registration Card ("ARC") for himself and Yakub pending the inevitable delay in the legacy process decision-making process that would occur following the transfer of his case to the CRD. This card, if granted, would have entitled both men to seek and obtain employment, a driving licence, welfare benefits, NHS treatment, bank accounts and a mortgage all of which had already been denied to them for over seven years since their arrival in the UK. This application was never answered, considered, responded to or decided by the SSHD.
- In his witness statement, Yakub explained that he felt particularly helpless since he had been unable to develop a career path or complete any training programme due to his lack of immigration status, he had no money and he had left his friends behind in Reading on moving to Peterborough. He had, as he put it, got involved with the wrong crowd. In this period, he was convicted of two offences of being in possession of prohibited drugs. These were his first two convictions and at the time that he committed these offences he was nineteen years old. His first conviction was on 4 May 2007 for possession of cocaine for which the magistrates imposed a fine of £180 and a forfeiture and destruction of drugs order. His second conviction was on 21 July 2007 for possession of cannabis for which the magistrates imposed a fine of £150 and costs of £70.00 and a forfeiture and destruction of drugs order.
- On 31 July 2007, a further PNC check was carried out on Yusuf. Following that check, a note was made by a member of Team 67 of the family exercise team that Yusuf had been considered for the family exercise but that he did not meet the criteria for the family exercise as these criteria stood before 12 June 2006 and that his application would fall to be reconsidered at some point in the future under the amended criteria. A GCID entry for 2 October 2007 stated that Yakub had failed the PNC check. There was no evidence about the terms of the change in the family exercise criteria but it is clear that Yusuf's convictions were considered for the third time and, although these again disqualified him from consideration under the family exercise, his case and convictions were, again for the third time, considered to be insufficiently serious to be referred to the CCD.
- It would seem that attempts were finally made in September 2007 to transfer the files to a legacy team in the CRD. On 6 September 2007, it was recorded on the Record Management System ("RMS") that an audit trail had been undertaken on Yusuf and Yakub's files S1028806/002 and S1028806/003 which recorded that these files had been lost. On 12 October 2007 there was a further record on a Lost on File proforma of a search on the File Tracking system by an originator in the CRD BEDX unit that file S1035356 had also been lost. The conclusion to be drawn from the relevant disclosed documents is that these three physical or virtual files and sub-files had been lost or were no longer traceable. S1035356 was probably lost in 2005 when it was sent to despatch from WIP and sub-files S1028806/002 and S1028806/003 were probably lost on or soon after 31 January 2007 when they were sent to the refusal hold. These file losses were not drawn to the Saids' attention until just before the hearing of this judicial review in December 2014 when the relevant documents were disclosed. These losses were also not drawn to the attention of the various case workers and decision-makers who were concerned from 2007 onwards with Yasin's, Yusuf's and Yakub's ILR applications dated 1 October 2004.
- Laila was diagnosed with a brain tumour which required major surgery in November 2007. She returned to work full-time as soon as she was able to and did not claim any benefits whilst she was unable to work. In 2008, Yakub started a relationship with Ms Nassim Ennajhi ("Nassim") who was a British citizen. He described the first three or more years of their relationship as one which had many ups and downs as a result of his life remaining uncertain due to his lack of immigration status and Nassim's background being very difficult given that she had been homeless for some time when they had first met.
- On 25 February 2008, Yasin's MP wrote to the SSHD and asked that Yasin and Yakub's cases should be looked at as a matter of urgency since Yasin had been attempting to obtain British citizenship for the past nine years. The SSHD's letter in reply dated 18 March 2008 referred to Yasin's failed asylum application and his settlement application for ILR dated 1 September 2004 that was based on his being married to a British citizen and that, although it was not possible to give a precise date when he would receive a decision, his case had now been allocated to Mr R White, a Team Leader based in the Liverpool casework unit, which was an alternative way of describing the CRD. The letter stated that Mr White would ensure that Yasin was informed of the outcome of his application once a decision had been reached. As it turned out, Yasin was not informed of the outcome for a further six years and nine months at which point he finally received a copy of his decision from the OLCU.
- On the same day as the SSHD's response letter was sent off, a note was placed on Yusuf's file that read:
"[Yusuf's] ILR application as a dependant outside the rules needs to be considered. He'll probably qualify as a family under [IR] 395C."
- On 15 April 2008, Yasin's solicitors sent a chasing letter following the earlier letter dated 18 August 2006 requesting an update on his case since they had not had either a decision or a letter from the SSHD who failed to reply to this letter. On 23 April 2008, the SSHD informed Laila's MP that Yasin, Yusuf's and Yakub's cases would not be prioritised within the legacy process because there were older unresolved cases that required decisions first.
- Laila bought a property in Peterborough with a mortgage in June 2008 in her sole name because Yasin was unable to be a party to the mortgage since he was an overstayer who had no immigration status in the UK. This property was and remains the family home. On 19 August 2008, the SSHD arranged for a referral of Yakub's case to Peterborough Social Services to be case assessed but since he was over the age of sixteen, indeed he was twenty-one, so that no further action was taken. No explanation has ever been given as to why the SSHD contacted Social Services for a child assessment of Yakub to be undertaken even though he was at least six years too old to be the subject of one.
- In a fax dated 13 November 2008, Yasin's solicitors CRTS asked the SSHD for news of the current position with regard to his case. As a result of the receipt of this fax, an instruction was issued by legacy unit LCC9 and posted on the GCID that Yasin's file S1035356 should be linked to Laila's file S10258806 and the linked files should be sent to legacy unit CRTS23 "as seen on the legacy allocation finder". Both those files had previously been noted as having been lost although legacy unit LCC9 appeared to be unaware of this when issuing its instruction that these files should be transferred to the unit allocated to consider and decide them. There is no evidence that they were found, obtained, retrieved or sent to unit CRTS23, which no doubt explains why neither that unit nor other unit within the legacy process ever considered Yasin, Yusuf and Yakub's cases other than to refer them onto the OLCU as cases that had been wrongly referred to the CRD.
- Yasin's solicitors' letter dated 12 December 2008 was replied to by the Correspondence Acknowledgement Team in Croydon on 6 July 2009. The letter explained that Yasin's case owner was Mr Adam Wheeler in CRT L11 but that his case was not a priority case and would be dealt with as soon as possible and, once dealt with, his solicitors would be notified. On the same date, a note was placed on the GCID stating that an acknowledgement letter had been sent to Yasin's solicitors by the Acknowledgement Team and that the correspondence had been retained in the CRD CAT. No other action was subsequently taken by the CRD except to transfer the cases away from the legacy process.
- Yakub and Nassim's first child was born on 7 January 2009. Although Yakub continued to live in the family home, he visited Nassim and the child every day and provided both with financial support.
- On 4 April 2010, Yakub was arrested by Cambridgeshire Police on suspicion of having committed criminal damage and of possessing cannabis following a complaint by Nassim. This arrest was brought to the attention of the SSHD since the police search had revealed that Yakub was an overstayer. He was served with an immigration detention notice. He was bailed by the police on 5 April 2010 and was then released from temporary immigration detention that he had been subjected to following his arrest. On 11 May 2010, Yakub was convicted by the magistrates' court of being in possession of cannabis and of criminal damage of Nassim's property. The magistrates imposed two community orders with separate requirements of 80 hours of unpaid work on Yakub and made a forfeiture and destruction of drugs order relating to the cannabis that had been seized.
- On 23 April 2010, Laila's prospective MP wrote to the MPs' correspondence section of the SSHD enquiring as to the progress of Yasin, Yusuf and Yakub's applications for ILR. In the SSHD's undated reply a few days later, the head of the SSHD's Ministerial Correspondence North Tam replied that Laila had been granted British citizenship on 13 October 2003 and that Yasin, Yusuf and Yakub had applied for LTR as her dependants on 1 September 2004. The letter continued:
"I apologise for the delay that has occurred in processing their case which has been due to competing operational priorities.
I am afraid that I cannot give you an exact date when their case will be resolved. We have established a dedicated resource to deal specifically with the older, unresolved asylum cases such as Mr Said and his family.
We are aiming to resolve these cases by summer 2011 and are on track to do so. As recently reported to the Home Affairs Select Committee the number of cases being concluded is increasing, with more than 250,000 cases concluded to the end of December 2009.
As we have previously stated, we will prioritise those individuals who may pose a risk to the public and then focus on those whose circumstances are considered exceptional. All cases will be dealt with on their individual merits and in accordance with these priorities.
I would be grateful if you could assure your constituent that every effort is being made to deal with all cases as efficiently as possible and that they will be contacted as soon as a decision has been made on their cases."
- The letter-writer was, of course, a senior official who was relying entirely on the information that she had been supplied with by the legacy unit that was concerned with the two applications which the letter-writer would have faithfully repeated. The letter therefore provides highly significant information as to the SSHD's shortcomings in the way it had dealt with the applications since 2004 and the inaccurate way that it was currently viewing them. The following conclusions can be drawn from the wording of the letter and from what was not stated in it about these matters:
(1) The SSHD's erroneous views about the applications that were identified by what was stated in the letter were that:
(i) Yasin, Yakub and Yusuf's cases were "unresolved asylum cases" which were enforcement cases being cases where the SSHD could require the applicant to leave the UK. However, they were not enforcement cases but unresolved settlement applications by the spouse of a British citizen and the two sons of that marriage who had already been resident in the UK for over 10 years.
(ii) Their cases were being considered by the legacy team (i.e. "the dedicated resource [established to] deal specifically with older, unresolved asylum cases") because they were those of applicants whose asylum applications had been concluded but who had not left the UK. However, their cases were not of that type. They were not of that type but were settlement applications which should have been retained by the IND Directorate that was dealing with British nationality and citizenship and which had granted Laila British citizenship.
(iii) The SSHD did not consider that Yusuf remained a continuing risk to the public or should be deported because the nature of his convictions meant that his continuing presence in the UK was not conducive to the public good.
(2) Some of the SSHD's shortcomings in the way that it had dealt with the applications were highlighted by the following matters that were not referred to but which should have been referred to in the letter were that:
(i) Yasin, Yakub and Yusuf each had two outstanding ILR applications and had had their respective cases considered on three separate occasions under the family exercise.
(ii) Some of their physical and virtual files had been lost or had gone missing at least three years earlier and were no longer available.
(iii) Yusuf's convictions had been considered on three separate occasions and were not considered to be sufficiently serious that they had to be referred to the CCD to consider whether he should be deported.
(iv) A CRD unit had concluded two years previously that only Yusuf's case was problematic but nonetheless he would be likely qualify for a grant of ILR under IR 395C when his case was finally considered by the legacy process.
- Overall, insufficient information about these outstanding cases was provided to the Ministerial Correspondence section of the SSHD to enable an adequate response to the MP's letter to be drafted. Had sufficient accurate information been provided, the CRD would inevitably have been directed to consider the applications as a matter of urgency.
- Early in 2010, Laila signed up with a nursing agency which enabled her to confine her nursing work to the Peterborough area. She therefore gave up the flat she was renting in Reading and lived exclusively in the family home in Peterborough. However, her work involved much night shift work and travelling significant distances for that work.
- Also in 2010, Yusuf's relationship with Karen broke up but he continued to take parental responsibility for both his son and his former partner's son who he treated as a step-son. Soon afterwards, he started a relationship with Ms Debra Lewis ("Debra") who he had first met some years earlier and he moved in with her in a rented property in Reading.
- On 8 April 2010, Yakub was arrested following a complaint by Nassim that he had assaulted her during an argument. Soon afterwards, a note was placed on Yakub's file by an Immigration Officer ("IO") stationed in the Cambridgeshire & Northants offices of the United Kingdom Border Agency ("UKBA") which covered the Peterborough area where he was living. The Cambridgeshire & Northants UKBA team had become involved with Yakub because the custody officer at the police station where Yakub was detained, in accordance with normal practice, had informed the local UKBA office that they had arrested and were holding Yakub in custody having ascertained from a police computer search that he was an illegal immigrant. The note was dated 8 April 2010 and was in these terms:
"Contacted legacy in relation to the outstanding barrier [to his removal], [Yakub] is a dependant on further claim and his father has been here since 1999, due to this they would likely fall for a grant. However, as [Yusuf] is no longer detained, the case is not a priority and cannot be dealt with, the likely outcome would be a grant subject to PNC."
- On 11 May 2010, Yakub was convicted of battery and the magistrates' court imposed a community order with 80 hours unpaid work. Yakub explained in his witness statement that they had had an argument but there had been no violence. He also stated that, following his conviction after a trial, Nassim had admitted to the social worker assigned to her following his conviction that there had been no assault and that she had lied about the allegation. In an unsworn statement made for these proceedings, she stated:
"At the start of the relationship I was very childish and got Yakub into a lot of trouble with the Police. This caused him to get arrested four times due to my lies. At the time I didn't realise how serious it was and how much of an impact it was having on Yakub's life. It wasn't until [about 2 October 2014]] I admitted what I had done and the lies I had told to my social worker. I finally admitted that Yakub was not a nasty bully I made him out to be. … Yakub has supported us through everything and me through some very difficult situations in my life. … Yakub doesn't have a great of money (sic) he has taken on the garage and now has to pay for everything. But even though times can be tough he continues to support us and do the best for his family."
- On 8 August 2010, the Sector 1, West London unit of the SSHD received a call from Loddon Valley Police Station who informed the unit that Yusuf had been arrested on suspicion of having been involved in the commission of a GBH offence, that a standard computer search had revealed that he was an overstayer and that he was still to be interviewed. The following note was placed on his file:
"Checks revealed two traces/record for [Yusuf] on CID. It appears [Yusuf] is an overstayer, but it appears [Yusuf] currently has an outstanding application possibly since 2004 (cases linked to what appears to be father and brother.) Also details of a British national also linked to records … most recent notes by legacy team indicate MP involvement in 2008 regarding application. There is a suggesting from these notes that [Yusuf] may be eventually granted [ILR]. In addition, letter sent to solicitors in July 09 (from father's record) indicates application is still under consideration."
- Following his interview, Yusuf was released without charge and nothing more was heard of the matter whose occurrence or alleged occurrence had resulted in his arrest. On 22 August 2010, Yusuf's solicitors again sent a chasing letter to the CRD seeking information about Yusuf's case. This was responded to by a standard CRD letter from the legacy Case Targeting Team dated 6 December 2010 which only referred to Yasin. This stated that the CRD was in the process of completing the backlog of older asylum application cases and sought photographs and information on the enclosed IND SAL2 form about Yasin – but not about Yusuf or Yakub. Yusuf's solicitors responded on 18 January 2011 with passport sized photographs and a completed IND SAL2 form for Yasin, Yusuf and Yakub.
- Thus, on 8 August and 6 December 2010, there were two further occasions when Yusuf's criminal record that included convictions for GBH, a public order offence and two counts of assault were considered by the CRD. The CRD caseworker on each occasion, having considered his criminal record, must have concluded that the convictions should not be referred to the CCD. Those decisions were understandable given the age of the convictions, Yusuf's mitigation and subsequent clean record, the several previous occasions when he had not been referred to the CCD by an SSHD caseworker following a PCN check and the low risk of reoffending that he now posed to the public.
- On 31 January 2011, Yakub was convicted of possessing cannabis and the magistrates imposed a community order with 80 hours unpaid work and the forfeiture and destruction of the cannabis that had been seized when he had been arrested.
- On 5 February 2011, Yakub and Nassim's second child was born.
- During 2011, the social worker who had responsibility for Karen and Yusuf's two children advised that Karen was not able properly to look after her two children and that they should be taken into care. When Laila became aware of the predicament of her two grandchildren, she instructed solicitors with her own funds and applied for a Guardianship order for both children. This was granted by the court and the two children moved into the Said Family home and were looked after by Laila. Yusuf continued to live with Debra who was pregnant with their first child and at the same time helped his mother with his other two children.
- The SSHD erroneously asserted in documents prepared for the judicial review proceedings that Yusuf was convicted of a driving offence on 6 June 2011. This was a mistaken reference to his driving conviction on 6 June 2001.
- On 9 August 2011, Yasin's solicitors, acting for him, Yusuf and Yakub, again chased the Case Assurance and Audit unit ("CAAU"), being the unit to which all outstanding CRD cases had been transferred in June 2011 when the CRD was closed. The letter requested an update of the consideration of their applications following the submission of photographs and a completed IND SAL2 form on 18 January 2011. Soon afterwards on 26 August 2011, the CAAU replied stating:
"We have now reviewed your case and subject to final security checks our decision is to grant you leave in line with current Immigration Rules."
The solicitors replied on 5 September 2011 stating that they were pleased to find that the CAAU was granting Yasin and his dependants ILR. On 30 September 2011, a note was placed on the GCID that the CAAU was unable to provide an answer to the solicitors' question and that their letter had been placed on their file. No explanation was provided to explain why their solicitors had been told that the CAAU's decision was to grant them LTR even though the case worker who had reviewed their applications had been unable to answer the request for an update on the progress of that consideration.
- Debra and Yusuf's first child was born on 6 October 2011.
- Security and background checks were undertaken on Yasin following his solicitors' enquiry and on 2 February 2012 a detailed case note was entered on the GCID which stated in part:
"In line with current LTR guidance, case falls for a grant of leave. … The individual does not qualify for asylum, Humanitarian Protection or Article 3/8 Discretionary Leave. … Delay has contributed to a period of residence over 4 years. There is no evidence of non-compliance … [Yasin] claimed asylum in 1999 and has now been resident in the UK for 12 years and 1 month. It is therefore accepted that he will have adapted to life in the UK. Reporting has never been set up and from the information on CID it appears that removal has not been pursued. There is a limited prospect of enforcing the individual's removal.
Decision: In the light of the individual's length of residence and connections to the UK, it is not appropriate to pursue removal and it has been decided to grant 3 years Discretionary Leave. Please note: applicant's son has not been considered in line. He was not a dependant on his original asylum application and he is now an adult."
It can be seen that the caseworker making this note considered that Yasin was suitable for a grant of DLR for 3 years in the first instance and accepted that there had been a delay in deciding his application of at least 4 years and that he had been resident in the UK for over 12 years.
- Surprisingly, the caseworker did not consider Yasin's principal application dated 1 September 2004 that had been made under the IRs for settlement and ILR on the basis of his wife's British citizenship. Furthermore, he had not considered Yakub's and Yusuf's dependency applications. These failures occurred because neither of the applications dated 1 September 2004 nor Laila's British citizenship application nor the family exercise applications were considered because the caseworker had been unable to consider the family exercise papers and GCID entries and relevant files had been lost.
- On 20 April 2012, the CAAU again requested passport photographs from Yasin which were provided by the solicitors with a letter dated 1 May 2012 along with passport photographs of both Yusuf any Yakub and an understandably pained comment that this was the third time that the Said family had been requested to provide photographs. This letter appears to have alerted the caseworker who had previously decided that Yasin should be granted DLR to the fact that his case was linked with those of his two sons. As a result, nothing further was done to implement the decision in Yasin's since it was appreciated that the cases of all three had to be decided together. As a result, on 17 May 2012 the caseworker requested PNC checks to be carried out on both sons even though these had already been sought and obtained for each of them on at least three previous occasions.
- The CAAU did not respond to Yasin's solicitors' letter dated 1 May 2012 and failed to inform them that their letter had drawn attention to the need to decide all three applications together. In consequence, the solicitors wrote a chasing pre-action protocol letter dated 27 July 2012 threatening an application for judicial review unless Yasin and his dependants were granted LTR in line with what the letter described as the legacy criteria. This in turn produced a standard holding reply from the CAAU dated 31 August 2012 that stated that the decisions in relation Yasin and his dependants' applications submitted on 1 September 2004 would be concluded "in due course". The caseworker concerned placed a note on the GCID which was instructive as to the erroneous approach that the CAAU was taking and its predecessor, the CRD ,had previously been taking in relation to the Saids' applications. The relevant part of the note read:
"PAP rep requests consideration in accordance with legacy. Please see [GCID entry] 2/2/2012, documents have been printed but it does not appear that the grant of DL has yet been implemented. … However, there is also the case of the application from 2004 which is a charge application, and as such takes precedence over the legacy application."
Cutting through the jargon, the caseworker writing the note was stating that since Yasin's application was based on his being the spouse of a citizen who had settled in the UK, it could not be determined in the CRD or its successor the CAAU since these parts of the UKBA were only concerned with legacy cases which were concerned with longstanding asylum applicants and their repatriation if they were not granted LTR. Yasin's application, on the other hand, was for settlement as the dependent spouse of a settled British citizen which had to be determined the part of the UKBA concerned with settlement, citizenship and nationality.
- The caseworker's request for Yusuf and Yakub's PNC was directed to the section of the UKBA that dealt with security matters and investigating applicants' criminal records. On 20 September 2012, that section only complied with that request in part by sending the CAAU Yakub's but not Yusuf's PNC.
- Laila's MP wrote to the CAAU on 4 September 2012 seeking information as to the current position about Yasin's claim and was provided with a holding reply dated 4 October 2012 that merely stated that Yasin's application for LTR as a dependant spouse had been referred to the relevant case working unit and he would be contacted as soon as possible regarding his application.
- The CAAU's continuing failure to provide decisions in the Said family's cases resulted in a second pre-action protocol letter from their solicitors dated 10 October 2012 which stated that unless Yasin's case was expedited and was decided within 30 days, the solicitors would have no alternative but to apply for judicial review. This letter was not responded to by the CAAU so the solicitors sent a third pre-action protocol letter dated 10 December 2012.
- On 21 December 2012, Yusuf and Debra's second child was born. Both his children with Debra and Debra herself were British citizens. Although his relationship with Debra changed sometime in 2012 when he moved out and returned to live in the Said family home in Peterborough to help his mother and, when he fell ill, help look after his father, Yusuf has retained a close relationship with both Debra and his two children by Debra and he provided and still provides some albeit modest financial support for them. He also sees them on a regular basis. The evidence suggests that that close relationship has continued to the present time. He now lives in a flat on his own in Peterborough.
- The SSHD's yet further failure to respond adequately to pre-action protocol correspondence resulted in the claim form in this judicial review being issued and filed on 18 April 2013. The claim form was filed in the Administrative Court and served on the SSHD in early April 2013 and the three Saids were named as first to third claimants. The claim was for a judicial review of the SSHD's failure to provide decisions in the two settlement ILR applications dated 1 September 2004.
- The CAAU obtained a yet further PNC printout for Yakub on 14 May 2013. Meanwhile, the judicial review claim was allocated to the Litigation Operations ("LO") section of the UKBA who arranged for the Treasury Solicitor to file an acknowledgement of service dated 29 May 2013. This merely stated that the SSHD, having reviewed the facts of Yasin's case, had agreed to carry out a consideration of his outstanding application and in the absence of special circumstances would take a decision within 6 months of 29 May 2013 (i.e. by 29 October 2013). The acknowledgement of service made no mention of Yasin's dependency application or Yusuf's separate but linked application even though they were both claimants and their applications also remained undecided. Permission for all three claimants to apply for judicial review was granted on 23 July 2013.
- On 10 June 2013, Yakub was convicted of being in possession of cannabis and he was sentenced in the magistrates' court to a community order with unpaid work, the forfeiture and destruction of the cannabis that had been seized when he was arrested and was ordered to pay the prosecution's costs in the sum of £85.00.
- LO issued instructions in early September 2013 that both applications should be transferred from the legacy process and CAUU to the OLCU and that the OLCU should decide them as soon as possible. No explanation has been provided as to why the LO decided that the two applications should be transferred from the CAUU and the legacy process to the OLCU. No doubt it was because the LO realised that these applications did not fall within the jurisdiction of the legacy process and were settlement cases and not legacy cases. Furthermore, no explanation has been provided as to why it took the LO 8 months from January to September 2013 to issue an instruction to the CAAU to transfer the two applications to the CAUU when that instruction could have been given within days of it being notified of the Saids' judicial review claim.
- A caseworker within the CRD noted on the Saids' file on 18 March 2008 that Yusuf was likely to be granted LTR under paragraph 395C of the IRs despite his criminal record. It was therefore the view of that caseworker that all three Saids would be granted LTR when his case and Yasin's and Yakub's cases were considered. In September 2008, these cases were destined for consideration by the CRD unit in Liverpool being managed by Mr White, by July 2009 they were under the management of a different staff member, Mr Adam Wheeler, in unit CRT L11. A further note was placed on Yusuf's file at that time to the effect that although the cases were still under discretionary consideration, Yusuf might eventually be granted ILR. The cases were not treated as priorities despite their lengthy and troubled history and nothing further was done in relation to their consideration until April 2010 when the Ministerial Correspondence unit informed Laila's prospective MP that the SSHD aimed to resolve all outstanding legacy cases including the Saids' cases by the summer of 2011. The CAAU was chased by Yasin's solicitors on 9 August 2011 which led to the CAAU writing to Yasin's solicitors and informing them that it had now reviewed his case – and therefore by inference the linked cases of Yakub and Yusuf – and subject to final security checks its decision was to grant him LTR in line with the current IRs. This decision was never implemented.
- A further decision was taken internally in February 2012 to grant Yasin LTR but this decision was also never implemented save that in April 2012, Yasin was again asked to provide photographs which he did by return. For unexplained reasons, Yusuf's and Yakub's cases had not been considered when Yasin's case was considered in August 2011 so that when their solicitors pointed out to the SSHD in May 2012 that their cases remained unresolved despite being linked to Yasin's case, Yasin's grant of LTR was put on hold to allow all three cases to be resolved together. Following receipt of the first pre-action protocol letter, the SSHD replied to the effect that the applications would be decided in due course. At the same time, a caseworker in the CAAU noted internally that the settlement applications, which were charged and that dated back to 1 September 2004 had not yet been determined and that these took precedence over the legacy applications.
- Pre-action protocol letters were sent to the SSHD by the Saids' solicitors dated 27 July 2012, 10 October 2012 and 10 December 2012. None were adequately responded to so that the judicial review claim was issued and filed on 18 April 2013. An acknowledgement of service was filed on 29 May 2013 which asserted that the SSHD had agreed to consider the claimant's "application (sic)", thereby showing that the SSHD at that time only had in mind that part of Yasin's application that concerned himself and did not have in mind either Yakub's or Yusuf's applications. The LO was appointed following the service of the judicial review proceedings and it directed the CAAU to transfer the cases to the OLCU in Liverpool. Nothing was done to affect this transfer until September 2013 following a request from the caseworker assigned to the Saids' cases that was sent to the CAAU CSF to place the files in the dispatch process and dispatch them to the OLCU as soon as possible. This request was reinforced by the LO on 14 October 2013 instructing the OLCU to consider the outstanding applications as soon as possible. The SSHD meanwhile failed to give effect to its assurance that decisions would be provided in both applications by 23 October 2013.
184.108.40.206. Causes of delay
- The three cases contained in the two applications dated 1 September 2004 should never have been transferred to the legacy process. The SSHD's erroneous decision to do so occurred because the various caseworkers concerned with taking and implementing that decision did not check the available files or the GCID to ascertain the Saids' full immigration history and did not consider whether the cases fell within the legacy terms of reference or whether it was appropriate to transfer them from the family exercise process into the legacy process. These failings were in part caused by the loss of essential files and repeated failures to make appropriate log entries onto the GCID. The cases entered a black hole when they were transferred into the legacy process where they remained unnoticed and undecided for nearly seven years between 28 November 2006 and 11 September 2013.
- The transfer of the cases to the legacy process was a serious error because Yasin, Yusuf and Yakub's cases and their outstanding applications did not fall within the legacy terms of reference and were not therefore legacy cases at all. Laila on behalf of Yusuf and Yakub and Yasin on his own behalf had initially made asylum applications in 1999 which had failed However, their positions had changed dramatically once Laila acquired British citizenship and their subsequent applications for both the right to settle in the UK and for ILR were exclusively based on their dependency on her status as a settled British citizen who was present in the UK and with whom they were living. They were, therefore, no longer to be regarded as failed asylum seekers but as the spouse and dependants of a settled and resident British citizen. The transfer decision was disastrous for them since it led to a further delay of seven years starting in September 2007 whilst their cases languished in the legacy process until they were transferred again, this time to the OLCU based in Liverpool, on 11 September 2013.
- It follows that the whole of this period amounted to delay in deciding the Saids' outstanding applications that was caused by the errors of the SSHD in taking the various decisions and in being responsible for the various failings that are outlined above. This delay was compounded by the failure to process and decide the application for ARC cards for Yasin and Yakub that was dated 18 May 2007 with the serious consequences for the Saids that resulted from their unlawful immigration status awaiting favourable decisions as the spouse and dependants of a settled British citizen.
2.1.7. Period (7): 11 October 2013 – 9 May 2014 – OCLU consideration
220.127.116.11. Primary facts
- The two settlement applications were transferred to the OLCU in early September 2013 on the instructions of the LO. On 11 September 2013, a caseworker in the OLCU requested S Daley in the CAAU to implement those instructions by arranging for both Yasin and Yusuf's applications to be to be put into the dispatch process and transferred to the OLCU as soon as possible. The OLCU was the appropriate unit for these applications to be transferred to since its function was to conclude very old outstanding live cases that did not belong to any other part of the IND. This transfer had been long delayed since the need to transfer the settlement applications to a unit that could deal with them had originally been flagged up by a legacy caseworker in August 2012 but nothing had been done about this. Following that transfer, which occurred promptly after OLCU's request, the OLCU undertook a PNC check on Yakub and his entry was provided to the OLCU on 19 September 2013. On 10 October 2013, the LO instructed the OLCU to consider and resolve these outstanding applications as soon as possible but, save for reviewing Yakub's previous convictions that were recorded on the PNC when these were provided, it failed to implement those instructions since it did not start to consider them until 9 May 2014.
- On 14 October 2013, the OLCU reviewed Yakub's PNC entries and concluded that because Yakub had not received a sentence of imprisonment for any of his past convictions, it should deal with his application rather than referring it to the CCD. No thought was given to the fact that at least some of these convictions were spent and should not be taken account of. The SSHD then failed to provide decisions in both applications by 23 October 2013 as promised in its acknowledgement of service.
- On 12 December 2013, Laila's MP was informed by the SSHD in reply to another enquiry that all three applicants would receive a decision within 6 months. This was the second assurance that decisions would be made within 6 months. The first had been pleaded in the acknowledgement of service where that assurance was given. That 6-month period would have expired on 29 October 2013. Secondly, this assurance was given which would expire on 12 June 2014. Neither assurance was complied with. The OLCU did not inform the Saids or provide an explanation to the court as to why neither assurance had been complied with nor did it provide the Saids following either non-compliance with an alternative date for the provision of the promised decisions.
- A note on Yasin's file dated 9 January 2014 stated that "this is a JR case and is therefore to be treated as a priority".
- In April 2014, Yasin was diagnosed with cancer. Following that additional burden and it becoming clear that Karen was able to care for her two children that Laila had been looking after for over three years, Laila agreed to allow them to cease living with her and return to live with Karen but it was made clear by the social worker that Karen should ensure that they kept in regular touch with Laila and Yasin.
- On 7 May 2014, a further note stated that nothing had been done in the Saids' case since it had been referred to the OLCU in September 2013. The note drew attention to the grant of 3 years LTR outside the IRs to Yasin in 2012 which had never been implemented and stated that that decision was merely a recommendation and that the final decision had to be made by the current caseworker. On 9 May 2014, the OLCU started work on the two applications by requesting a PNC check of each of the applicants.
- A legacy caseworker flagged up the need to transfer the two applications out of the legacy process to a part of the IND that could deal with them on 31 August 2012. Nothing was done to address this need until the LO was instructed to oversee these applications as part of its involvement in the judicial review that had been filed in January 2013. However, it took the LO nine months before it instructed that the cases should be transferred to the OLCU who did nothing to progress the decision-making process for many weeks. On 12 December 2013, it replied to a chasing letter sent by Laila's MP with an assurance that all three applicants would receive a decision within 6 months – that is by 12 June 2014. That assurance overlooked the previous assurance given in the acknowledgement of service that the three decisions would be provided by 29 October 2013. An important note was placed on Yasin's file on 9 January 2014 which stated that his case was to be treated as a priority and a second note was placed on the file on 7 May 2014 stating that nothing had been done on his case since it had been referred to the OLCU in September 2013. Finally, the OLCU started its consideration of both applications on 9 May 2014.
18.104.22.168. Causes of delay
- There were three periods of delay, all of which were the result of failings by SSHD caseworkers. The first period, from 31 August 2012 until early September 2013 occurred because nothing was done to implement the need to transfer the applications out of the legacy process. The second period, from January 2013 until September 2013 was caused by the failure of the LO to instruct a transfer for nine months after it had been instructed to oversee these applications. The third period of delay from September 2013 until 9 May 2014 arose from the failure of the OLCU to start its consideration of these applications for 8 months after they had been transferred to it despite being instructed to decide them as a matter of urgency as soon as they had arrived in the OLCU.
- No progress was made in either of these cases in the eight-month period following the decision to transfer them to the OLCU save for an assurance given on 12 December 2013 that was not honoured, being the second of such assurances, that the cases would be determined within 6 months. Although the caseworker who decided to submit Yusuf's file to an EO to determine whether it should be sent to the CCD in Liverpool for that decision, the EO's decision appears to have been taken without any knowledge of the five previous occasions that caseworkers in units concerned with the settlement and, family exercise applications and the legacy process had reviewed Yusuf's criminal record and had decided not to refer his case to the CCD. That should have led the EO to consider whether this case had to be referred to the CCD in the light of those previous considerations. It is probable that these steps were not taken because the relevant information was not available to the caseworker because of the loss of vital files and the repeated failures to update the GCID and file accessibly copies of essential correspondence the so that this essential part of the history of both applications were not available to the caseworker. A final deficiency is that such files as were available appear never to have been sent from the ACD in Croydon to the CRD in Liverpool. This failure was evidenced by the fact that the decision to refer Yusuf's current file to the CCD in Liverpool in June 2014 was taken by the Croydon CCD workflow team.
- It follows that the whole of this period amounted to further delay in the decision-making processes of all three cases caused by various failings of the SSHD.
2.1.9. Period (8): 21 May 2014 – 9 October 2014 – OLCU decisions
22.214.171.124 Primary facts
- On 9 January 2014, the Treasury Solicitor requested the LO to provide an update on the progress of OLCU's of both applications. The LO chased this request up with the CAAU who contacted the OLCU with a request to casework the applications as soon as possible. The OLCU responded with an assurance that they would be caseworked within a 3-month target (i.e. by 9 April 2014). In a subsequent discussion between the CAAU and OLCU 14 to whom the applications had been referred, it was agreed that the decisions would be provided by 6 August 2014. The CAAU posting revealed some misunderstanding of what had been transferred for decision in that it requested the OLCU to consider "the applicant's (sic) outstanding charged application for LTR as a spouse and his asylum claim". In fact, what had been transferred was neither a LTR application nor an asylum claim but his outstanding settlement application for ILR as the spouse of a settled British citizen and there had also been transferred both Yakub's and Yusuf's outstanding settlement applications for ILR as the dependants of that settled British citizens.
- OLCU did nothing further until it requested a PNC check on Yasin on 7 May 2014 and his clear PNC was returned on 9 May 2014. On that date, the OLCU caseworker dealing with the applications wrote to Yasin's solicitors and asked them to provide his photograph and other necessary documents needed for the consideration of his application. This was the fifth time of asking at least in the course of the protracted history of these settlement applications that a Directorate or unit had asked Yasin to provide photographs and the other documents that are required when an application for LTR or settlement is being considered. On each occasion, all three Saids complied promptly and fully with the request. The solicitors' response was received by the caseworker on 16 May 2014. This pointed out that all three Saids' applications were being considered by the OLCU. On receipt of this letter, the caseworker requested a copy of Yusuf's PCN entry to add to the PCN entries for Yasin and Yakub which were by then in the file. This was received by the caseworker on 20 May 2014 who immediately noticed Yusuf's 2004 convictions. He ceased work on both applications and referred Yusuf's case to a more senior colleague who directed that it should be referred to the CCD. As a result, further work on Yasin's application was put on hold. It is not clear what the basis of this suspension of work was and it ought to have been recorded on the GCID, but was not, why work on the case was being suspended and what should trigger a resumption of work. Presumably, it was intended that work should resume when either the CCD accepted the reference so that the linkage of the two applications was broken or it refused the reference and returned the case to the OLCU to resume the linked consideration of both applications.
- Although the CCD accepted the reference to it of Yusuf's application on 25 June 2014, the OCLU did nothing more in relation to Yasin's and Yakub's applications until it received an email from the LO on 30 September 2014 about their applications which read in part:
"The above applicants lodged a JR against the 10-year delay in considering their outstanding application. Permission was granted on 29 May 2013 and following this we have failed to meet 2 deadlines for concluding this case. The substantive hearing has been brought forward to 16/10/2014. …
Diane [of OCLU] is aware of this case and has taken steps to make this decision ready. I have already requested the file to speed things up but it please be ensured that this case is decision-ready within the next week?
We have already been criticised by the judge for delay. …
[Signed on behalf of LO].
- This cry to arms was responded to with great alacrity. Initially, OLCU 14 arranged for the referred file relating to these applications to be obtained from hold 5 where it had been stored since its arrival in September 2013 from the legacy unit previously dealing with it. This was file S1028806/008 which was the only file that had been referred to the OLCU. On Thursday 2 October 2014, Mr David Wiggins, who was an EO in Migration Casework, Complex Case Directorate, was allocated the task of deciding and drafting the decisions for both applicants in Yasin's application for OLCU 14 by the following Tuesday 7 October 2014 (i.e. within the week asked for by the LO's email of 30 September 2014). He ascertained from the CCD that it had decided the previous week that Yusuf should be deported. He then rapidly considered the available papers in file S1028806/008 and reached the provisional conclusion that there was ample evidence for both Yasin and Yakub to be granted what he described as "residual ILR … given the errors … and substantial and demonstrable mishandling of the case by the SSHD … which have occurred … over a 10-year period".
- However, on 3 October 2014, Mr Wiggins looked at Yakub's PCN and informed the LO that:
"Having viewed the PCN for Yakub Said; 17/03/1987, I am not totally comfortable in granting him ILR in-line with his father He has a smattering of convictions, and, to me (given their nature), would not satisfy any test of 'character and conduct'. His offending is below the threshold for a referral to Criminal Casework and I am mulling over the grant of discretionary leave – (the lead applicant (Yasin Said) is definitely getting ILR). I appreciate that it is a decision for the business – and I will have a chat with Sarah, our senior technician. I am keeping you (and by extension T/Sol) in the loop, given the potential JR."
- Mr Wiggins then discussed Yakub's case with the LO officer concerned with the Saids' JR and with his in-house senior technician who was a Senior Caseworker ("SCW"). He informed them that Yasin's application was "as dependent spouse (except paragraphs 277 – 289)" and Yakub's was "as dependent children (except paragraphs 296 – 303)". He was informed in these discussions that CCD caseworkers referred all spent convictions to the Chief Caseworker in the CCD for consideration as to whether to pursue deportation or removal and that the CCD was considering deportation of Yusuf as a separate matter. These discussions about Yakub's case continued between Mr Wiggins and the two senior SSHD officials on 6 and 7 October 2014 during which Mr Wiggins was pressed for his decision by LO. On 8 October 2014, the SCW he was in touch with discussed Yakub's case with the Chief SCW. The result of these various discussions was that Mr Wiggins was advised that he should decide Yasin's and Yakub's cases separately, that it was open to him to grant Yasin ILR outside the IRs having refused his application under the IRs and Yakub LTR outside the IRs for 30 months on account of his criminal offending. On 9 October 2014, Mr Wiggins finally decided that Yasin's and Yakub's applications under the IRs would be refused but that Yasin would be granted ILR outside the IRs and Yakub 30 months LTR outside the IRs, the difference being explained by Yakub's criminal convictions.
- Somewhat bizarrely, on 23 October 2014, the OLCU sent Yusuf a letter informing him that a review was being undertaken by it of his outstanding case records and asking him to send his up to date details despite his case having been referred to the CCD in May 2014. Yusuf did not reply to this letter and the CCD decision dated 13 November 2014 confirmed that the OLCU would be taking no further action on his case in the light of the decision to pursue his deportation from the UK. This episode provided further evidence of the SSHD's failure to provide the OLCU with sufficient details of Yusuf's claim and claim history.
- This period is concerned with the closing stages of the decision-making processes in Yasin and Yakub's cases since these had now been separated from Yusuf's case. There was a five-month delay between the caseworker apparently starting the decision-making process and the publication of the decisions. There is no evidence that any effective work was undertaken on these two cases between May and early October 2014. They seem to have been held in abeyance awaiting a decision in Yusuf's case by the CCD. Since the linkage between these two cases had been broken by the transfer of Yusuf's case to the CCD on 25 June 2014, it could not have provided any justification for the delay, particularly given the assurances previously made that decisions would be made within six months. Remarkably, the entire decision-making process was undertaken over a period of six working days between 2 and 9 October 2014 after an overall delay of ten years five weeks. This hurried consideration of their applications was entirely caused by the wish to conclude the consideration and produce decisions prior to the judicial review hearing fixed for 16 October 2014 notwithstanding the failure to embark on that consideration prior to 2 October 2014.
126.96.36.199. Causes of delay
- It has to be remembered that both cases had been ready for a decision on or soon after 13 March 2003 when Laila had applied for British citizenship. Both applicants had been living in the UK for over fifteen years by the time the decisions were taken on 9 October 2014 and their consideration, if their files and the GCID had been properly kept and maintained, was capable of being undertaken speedily as Mr Wiggins demonstrated. There is therefore no apparent excuse – and none was offered – for the OLCU to have failed to give these decisions in May 2014 at the beginning of this period at the same time as Yusuf's case was referred to the CCD even if these two decisions were then still outstanding.
2.1.10. Period (10): 14 June 2014 – 13 November 2014 – CCD consideration and decision
188.8.131.52. Primary facts
- Until 20 May 2014, Yusuf's application was linked to Yasin's application and was subject to the same delays that it had been subject to.
- On 20 May 2014, the OLCU caseworker drew to the attention of an EO Yusuf's previous convictions pointed out that Yusuf's case had not been referred to the CCD although his convictions met the guidelines for reference to the CCD. Neither the caseworker nor the EO took account of the fact that these convictions were spent and came within the transitional provisions of the LASPO so that they could not be taken account of or referred to by anyone concerned with Yusuf's outstanding settlement application. The EO directed that Yusuf's case should be referred to the CCD to be considered by a casework unit there for possible refusal of the application and consequent enforcement action.
- As a result, on 14 June 2014, the OLCU sent Yusuf's case to the CCD intake team based in Croydon for processing and dispatch to the CCD Liverpool offices. There is no evidence as to what files were sent to the CCD or what files, documents and GCID references were considered at any stage of the CCD's involvement with Yusuf's case. It would appear from its ultimate decision in his case that the principal document that was considered was Yusuf's answers given during his interview on 1 September 2014 and his answers to the deportation questionnaire dated 22 October 2014. Thus, much relevant material that had been generated in the ten years during which his application had remained undecided and in the preceding five years since his arrival in the UK were not considered or taken into account.
- The papers that had been received by the CCD were passed to the Croydon-based CCD intake team who was processing to ensure that the case was admissible within the CCD's guidelines. The CCD was concerned with questions of deportation and removal for reasons of criminality and previous convictions. Its guidelines were not disclosed but it is clear that any conviction involving a custodial sentence fell within the ambit of the CCD and any conviction involving a non-custodial sentence did not. It would seem that a reference where the immigrant had been subject to a custodial sentence was not mandatory and that caseworkers, certainly in the years prior to 2013, had a discretion as to whether to refer or not.
- The papers were checked by a member of the intake team on 24 June 2014 who then passed the reference to the CCD Workflow Team ("CCD WT") on the same day. On 25 June 2014, an EO in the CCD WT accepted the reference and directed that the case should be sent to Liverpool where the CCD casework units were based and be allocated to a casework unit to take "continued action as appropriate in the light of the circumstances of the case". Meanwhile, the OLCU retained the cases involving Yasin and Yakub.
- In the summer of 2014, Yusuf informed Laila and Yasin that he had had two children by Debra and Yakub informed them that he had had two children by Nassim. In each case, it is clear that they had deliberately withheld this information from the four children's paternal grandparents because neither of them wanted to Laila to worry about the fact that between them they had four very young children. They were concerned that Laila, with all her other family and work commitments would be caused undue additional stress. Moreover, they were probably embarrassed to reveal to their parents that each had had two further children with partners that they were not married to.
- On the evening of 30 August 2014, whilst his case still remained in the Croydon office of the CCD awaiting transfer to a casework team in Liverpool, Yusuf was out in Peterborough with some friends. In the early hours of the following morning a scuffle in the street occurred and although he was not involved in the scuffle, he and many others were arrested on suspicion of being involved in an affray. He was detained in Thorpe Wood police station in Peterborough, interviewed the following day and then released. There is no evidence to suggest that he was in any way involved in the criminal conduct that had led him to be arrested. It is standard practice for the police to carry out a computer search to check whether an arrested person is entitled to live or remain in the UK. This search in Yusuf's case revealed that he was an overstayer with a criminal record who had served time in prison and had been released some years previously. It was standard practice for the police to bring to the attention of the immigration authorities someone in police custody who was unlawfully present in the UK.
- In consequence, Thorpe Wood police station informed a UKBA duty officer that Yusuf was in police custody but was likely to be released in the near future. That duty officer ascertained from the SSHD computerised record system that Yusuf was an overstayer with a criminal record who had an outstanding immigration application and that his case was currently owned by the CCD. He therefore informed a duty officer at the Croydon CCD office that Yusuf was in police custody but was likely to be released imminently. Since his case had been the subject of an internal transfer from the CCD's Croydon office to its Liverpool office, the Croydon CCD duty officer informed the Liverpool CCD duty officer that Yusuf was in police custody. This information caused the Liverpool CCD office temporary difficulties because it had yet not received Yusuf's file and was unaware of the details of Yusuf's case. Time was short because Thorpe Wood police station was about to release Yusuf under the PACE regulations unless he was taken into immigration detention. The upshot was that Croydon CCD, at Liverpool CCD's request, arranged for an Immigration Officer ("IO") to interview Yusuf in the police cells in order to obtain details about him that would be relevant in any subsequent consideration of his immigration status and case. It was also arranged that that IO would serve Yusuf with a Notice of Restriction notifying him that he was subject to restrictions as to residence, employment and reporting on his release from the police station and that the Croydon office would transfer Yusuf's file to the Liverpool office as a matter of urgency.
- A Notice of Restriction was served on Yusuf by the IO when he interviewed him on 1 September 2014. Yusuf was released from police custody soon afterwards. The SSHD did not disclose a copy of the interview notes that that IO made during the interview although these would have been provided to the CCD decision-makers involved in the decision to deport him.
- There is no evidence of that Yusuf had committed any criminal offence in the period leading up to his arrest or that he was engaging in any unacceptable behaviour when he was arrested. It would seem that the police arrested a large number of individuals on arrival at the scene of the possible affray and soon afterwards released without charge all or most of those who had been arrested. On 25 September 2014, a caseworker in the CCD filled out a screening interview request form which contained this answer to one of the printed questions:
"Does the subject have a history of violence? If YES, please give details.
Convicted of affray, wounding with intent to do grievous bodily harm and 2 counts of common assault in 2004. Also in September 2014 was taken into custody in connection with further incident of affray. Warnings on PNC say subject may be violent, assault, GBH, may have used glass as weapon."
The SSHD did not disclose a copy of the print out of the "warnings on PNC" and such PNC warnings may not have existed since such information is not usually to be found on the PNC. Moreover, this was the only evidence to be found in the trial bundle that Yusuf still retained a violent propensity 11 years after his only recorded incident of violence or that he had ever used or threatened to use glass as an offensive weapon. In consequence, I conclude that no weight is to be attached to it.
- On release, Yusuf returned to the Said family home in Peterborough where he had been living since his relationship with Debra had broken down in 2012. On 4 September 2014, the Litigation Operations ("LO") caseworker concerned with his case contacted Liverpool CCD and asked whether the CCD could take a decision as a matter of urgency in Yasin's and Yakub's linked cases 'irrespective of the fact that Yusuf 'is subject to a deportation order'. The email described Yusuf's case as 'a release case' – that is in CCD terms a case where the subject has served a custodial sentence but has since been released from prison – which 'meets the deportation criteria'. It also stated that Yusuf was along with his father and one other dependant were making a JR challenge to the delay in making a decision in their 'LTR and asylum applications' and that the consideration of both applications had been halted upon the discovery of 'the conviction [of Yusuf]' on the PNC despite the fact that a decision should have been made in them by 7 August 2014. A CCD Workflow Assessor replied on 6 September 2014 with the information that CCD Liverpool was still waiting for Yusuf's files to be sent from CCD Croydon and that CCD Liverpool had only been notified of the case on 1 September 2014. On receipt of the files, the case would be passed to a pre-decision team, team CCL3.
- It is to be noted that the LO was inaccurately describing all three outstanding applications as being for LTR and asylum whereas they were for settlement and ILR with no asylum application and that Yusuf's conviction was only first discovered on 7 August 2014, that it met the deportation criteria and that he was subject to a deportation. In fact, he had yet to be considered for deportation and no deportation order or notice had yet been made, his conviction was not subject to the deportation criteria since the SSHD had known about his GBH and other convictions for many years and they had been revealed but not referred to the CCD in the five PNC searches that the SSHD had made in the intervening years. They were also spent and were not ones that could be taken account of by those dealing with his application for settlement in the light of the statutory LASPO transitional provisions.
- On 16 September 2014, following the receipt of Yusuf's file, a member of the Liverpool CCD pre-decision team prepared a file note for a SCW which read in part:
"[Yusuf] was convicted of an offence in 2004. This conviction is now spent, therefore please see the attached LASPO minute for details.
However, [Yusuf] also has an outstanding application for ILR as a dependant outside the rules. This has been outstanding since 2004. [Yusuf] is a dependant of his father on this application along with his younger brother.
Please could you provide guidance on how to proceed with this case in the light of [the LO's email summarised above] … ."
- The attached LASPO minute gave very brief details of Yusuf's previous convictions. The only details provided of the 2004 convictions were as follows:
"OFFENCE & SENTENCE
Affray/Wounding with intent to do grievous bodily harm/2 counts of common assault. 18 months imprisonment
BRIEF DESCRIPTION OF OFFENCE
Circumstances of offence not known
PREVIOUS OR SUBSEQUENT CONVICTIONS
[Brief details of Yusuf's 1 driving conviction for driving without a licence, insurance or a test certificate in 2001 and failing to surrender to custody at the appointed time and of his 2 drink driving offences in 2001 and 2003]"
- On 23 September, the LASPO minute, and apparently little else, was considered by Mr Kenny Walsh who was the CCD's Chief Caseworker (CCW"). Having considered these documents, the CCW reached the following decision which was noted on the LASPO minute:
"Although 10 years ago, the main offence was of violence.
In addition, there have been several driving offences and driving with excess alcohol could result in serious death or injury to an innocent party.
We should seek to deport."
- On 24 September 2014, an SCW sent a file minute to the caseworker dealing with Yusuf's case which read in part:
"… CCW has instructed Criminal Casework team to pursue deportation against [Yusuf] given the circumstances of his crime.
We can refuse his application for ILR using paragraph 322(5) in the deportation decision in a similar manner as we would normally do refusing outstanding leave for a foreign criminal.
As far as the other ILR application for father and brother (OLCU) appear to be dealing with the outstanding ILR application.
You will have to liaise with the case owner in OLCU and advise them we will refuse the ILR for [Yusuf] and they should process the father/brother's application separately."
- On 25 September 2014, Yusuf was served by the CCD with a notice of liability to deportation which enclosed a detailed questionnaire seeking answers to questions that would be relevant in any consideration as to whether he should be deported because of his criminal convictions. Soon afterwards, Yusuf was informed that he should attend an asylum screening interview which had been arranged by CCL3 on 25 September 2014 because the CCD caseworker concerned with his case had erroneously considered on reading his file that he had an unresolved asylum application. This belief stemmed from a short passage in a letter written by his solicitors to the SSHD in 2008. The relevant passage does not, when carefully considered, amount to an application for asylum and Yusuf did not attend the interview. Instead, his solicitors wrote to the CCD and informed it that Yusuf had never made a fresh claim for asylum following the adverse decision of an adjudicator in 2002. Yusuf did, however, return the questionnaire with answers to all the questions.
- Soon afterwards, the CCD SCW who had referred this case back to the caseworker drafted a background note for the caseworker about Yusuf's case. This stated that CCD only became aware of Yusuf's case in June 2014 after OLCU who were considering the case requested a PNC and it returned with a positive hit. The note summarised his immigration history. The summary included a description of his application dated 1 September 2004 as being one for "ILR as a dependant outside the rules alongside his father and brother". It also stated that he had applied for ILR with his father and brother under the family exercise on 19 December 2005 which was refused as being ineligible on 30 June 2006. It also summarised his criminal history. It concluded by stating that Yusuf's conviction was spent but then set out the Chief Caseworker's decision that is set out above.
- Yusuf's solicitors returned his answered deportation questionnaire with other relevant documents on 23 October 2014. The CCD then drafted the detailed decision dated 13 November 2014. The draftsman was a senior member of the CCL3 team and the decision was based on the various documents already summarised. The decision involved the SSHD deciding to deport Yusuf because his deportation was conducive to the public good and none of the statutory exceptions to his deportation were applicable, to refuse his article 8 human rights defence to deportation and to refuse his settlement and ILR application. Although this was the SSHD's formal decision, the decision-maker was translating the decision of the CCW as supplemented by the subsequent instruction of the SCW into a structured decision that was intended to be reached, in accordance with the law.
- It was thought by Yusuf's legal team, on receipt of this decision, that Yusuf had a right of appeal against the decision to deport him and to refuse his human rights claim on any of the statutorily permitted grounds since that claim had not certified under section 94B of the NIAA 2002. His claim for ILR was refused under paragraph 322(5) of the IRs with no right of appeal against that particular decision. Yusuf lodged an in-time notice of appeal to the FtT on 27 November 2014 against the deportation decision on the grounds that it was not in accordance with the law and was contrary to his human rights. Soon after lodging the notice of appeal with the FtT, Yusuf's legal team discovered that the relevant provisions in the IA 2014 had come into force on 20 October 2014 so that his appeal against the deportation order was confined to the ground that deportation would infringe his article 8 rights because it would amount to a disproportionate interference with his family and private life.
- This period is concerned with Yusuf's case. On 20 May 2014, a caseworker in the Croydon OLCU drew attention to the fact that Yusuf's case had not been referred to the CCD having impermissibly and unlawfully taken account of his spent convictions that had been sentenced on 15 August 2004. As a result, his case was sent to Croydon CCD WF on 25 June 2014 and on the same day an EO directed that the case should be sent to the CCD casework section based in Liverpool. The file was subsequently sent to Liverpool in early September 2014.
- It is not clear from the disclosed evidence why Yusuf's file was located in Croydon since the CRD, CAAU and the OLCU who had previously been dealing with his case were based in Liverpool. It may be that despite the Saids' cases being transferred from the Croydon-based family exercise processing process to the CRD and then, nearly seven years later, from the CRD to the OLCU, the Said case files remained in Croydon. This would provide further evidence of why these cases took over ten years to decide.
- Yusuf's case was still waiting to be allocated to a CCD casework unit when he was arrested on 30 August 2014 in Peterborough. This news was relayed to the CCD in Liverpool and the upshot was that the CCD considered his case as a matter of urgency. A copy of his PNC revealed that he had spent convictions for GBH and associated matters which were considered in accordance with the CCD's guidelines without taking into account the LASPO transitional provision whose effect was that a spent conviction could not be considered by the CCD when considering outstanding applications for ILR that had been lodged prior to the LASPO statutory provisions coming into force. The caseworker who had obtained the PNC print out attached that print out and the LASPO minute to her own note and the minute, dated 16 September 2014, was referred to the CCD's Chief Caseworker Mr Kenny Welsh. He considered these papers – and it would appear little else – and decided that Yusuf should be deported. Amongst other documents that he did not consider were the JSRs applicable to Yusuf's case. These are presumably highly relevant documents relating to and explaining the background to his spent convictions and sentence but the file minute dated 24 September 2014 stated that these were unavailable given that his conviction was ten years old.
- This decision was incorporated into the formal decision letter prepared by S Jackson who was a member of the unit dealing with Yusuf's case that was dated and sent out on 13 November 2014.
184.108.40.206. Causes of delay
- There was no justification for the period of five months that elapsed between June and November 2014. Even if it was justifiable to refer Yusuf's case to the CCD, Yasin and Yakub's cases could and should have been decided in June 2014 and Yakub's case should have been decided consistently with Yasin's case since all but one of his convictions were spent and only that one conviction should have been taken into account by the OLCU. Similarly, the referral of Yusuf's case to the CCD should have been refused by it and Yusuf's case should have been returned to the OLCU since it was impermissible for the CCD to consider his convictions since they were spent. The OLCU should then have decided his case consistently with its decisions in Yasin's and Yakub's cases. Quite separately, and after the OLCU's decision in his ILR and settlement application, it would have been open to the CCD to have considered whether Yusuf should be deported but, in doing so, it would have to take his entire immigration history and the history of the SSHD's dealings with his various applications into account.
2.1.11. Period (10): 14 November 2014 – February 2015 - SSHD's subsequent actions
220.127.116.11. Primary facts
- The Treasury Solicitor wrote to the claimants' solicitors on 9 December 2014 following the exchange of detailed amended grounds of review and detailed grounds of resistance and in anticipation of the hearing fixed for 19 December 2014. The letter made a number of proposals. The letter was responded to in emails from the claimants' solicitors culminating in a letter dated 18 December 2014 and an enclosed witness statement from the claimants' solicitors' file holder Ms Shradha Premji. These various documents contained the following proposals that were put forward by the SSHD and the claimants' solicitors' answers to those proposals:
(1) The service of the SSHD's decisions. The SSHD formally served decisions relating to Yasin's and Yakub's applications dated 9 October 2014 and to Yusuf's application dated 13 November 2014. The claimants accept that those dates should be treated as being the dates of the decisions although they and their solicitors received copies of the decisions on later dates than those dates. The SSHD proposed that in the light of those decisions, the originally pleaded claims seeking orders relating to the non-service of those decisions had become academic and should be stayed or withdrawn. The claimants' response was that they continued to seek declarations that the decisions had been unlawfully delayed by many years and damages for those delays and wished to continue with those claims. They therefore declined to withdraw or consent to a stay of the original claims.
(2) Concession. The detailed grounds of resistance stated:
"There is no good reason for the delay in determining the applications for leave to remain. The [SSHD] accepts the delay amounts to maladministration."
This concession did not amount to a formal admission as provided for in CPR14.1(2) and it did not identify what acts or omissions or the period or periods of delay that it covered. The SSHD invited the claimants to confine their proposed amended claims to a claim for an assessment of damages, if any, flowing from that conceded maladministration. The claimants declined to confine their claims in the way suggested since the concession was so informal and imprecise that it would be impossible to prove that any cause of action giving rise to damages had been established by the concession.
(3) The UKVI complaints procedure.
(a) The SSHD invited the claimants to agree to stay the proceedings and any amended claim in the light of the UKVI complaints procedure which provided a suitable alternative remedy. This procedure provided redress by way of an award of compensation to applicants who had made applications for immigration relief to the SSHD and had a complaint as to how that application had been handled. Such a complaint could be addressed to the UKVI internal complaints procedure which had limited powers to award limited compensation for any maladministration that had been shown to have occurred. The claimants through their solicitors submitted complaints on behalf of each of the four Saids on 10 December 2014 and on 12 December 2014 informed the SSHD that the claimants would still be pursuing their respective claims for damages.
(b) The SSHD contended that the complaints procedure provided a suitable alternative remedy so that the entirety of the proposed amended claims should be stayed and that their claims for damages should be pursued through the complaints procedure. In Ms Premji's witness statement, the claimants formally withdrew their complaints since they contended that the delays and maladministration that had occurred were so extensive that any compensation that might be awarded by the complaints procedure would be wholly inadequate to cover the damages that they were claiming and were entitled to. Moreover, the range and nature of those complaints required a complex investigation of both the facts and the law of a kind which the complaints procedure was wholly inadequate to deal with.
(c) Notwithstanding that withdrawal, the SSHD unexpectedly and without warning sent to Yasin's solicitors a purported decision in relation to his complaints in which he was awarded £500. The decision gave no discernible reasons to explain what delay was referred to, the causes of that delay, the maladministration that had given rise to those causes or how the sum awarded had been calculated. Furthermore, although the original complaints had been submitted on behalf of each of the four Saids, the decision only purported to decide Yasin's complaint. This somewhat contemptuous way of dealing with Yasin's complaints was compounded by the SSHD ignoring Laila's, Yusuf's and Yakub's complaints, by awarding Yasin a derisory sum to compensate him for the delays and maladministration that had occurred and by subsequently withdrawing the proposed payment on the grounds that the relevant unit had not been informed that Yasin and his two sons had withdrawn their complaints.
(d) The claimants therefore did not consent to the proceedings being stayed or that the UKVI complaints procedure was a suitable alternative forum in which to resolve their complaints.
(4) SSHD's apology. Paragraph 5 of the SSHD's counsel's skeleton prepared for the hearing on 19 December 2014 stated tersely:
"The [SSHD] has acknowledged the delay amounts to maladministration and has apologised. In the circumstances, there is no need for a declaration."
This was the first that the claimants had heard of an apology from the SSHD. During his opening at the hearing, counsel for the SSHD on instructions offered an apology for the maladministration that had occurred on behalf of the SSHD but was unable to identify the periods of time covered by the apology or the actions or specific acts of maladministration that were referred to save that it covered such maladministration as had occurred. Further, in the uncalled for decision sent to Yasin in relation to his withdrawn application under the UKVI scheme, the decision-maker apologise to Yasin for the maladministration that had occurred. The SSHD pleaded that the apology was a sufficient remedy for any maladministration that had occurred. This was not accepted by the claimants since it was not considered to amount to a remedy at all for Laila, Yusuf and Yakub and was both derisory and contemptuous in relation to Yasin's complaints. The remedy was also clearly not one of just satisfaction for any of the claimants.
(5) SSHD's reconsideration of Yakub's decision. In the Treasury Solicitor's letter dated 9 December 2014, it was proposed that the further evidence that had been tendered by the Saids to challenge the grant of LTR of 30 months to Yakub and the decision to deport Yusuf – which it was contended could not be relied on in this judicial review to challenge the decisions of 9 October 2014 and 13 November 2014 – would be considered by the SSHD if the claimants agreed to the judicial review proceedings being stayed. In a subsequent post-hearing skeleton, the SSHD agreed to reconsider the decision in Yakub's case. The SSHD has not withdrawn this decision and has not indicated the basis on which any reconsideration will take place. Yakub was not prepared to withdraw his claims in relation to the decision since the consideration of the further evidence did not amount to a reconsideration of the decision and the decision itself remains in place and if reconsidered, would not be reconsidered from scratch following the withdrawal of the first decision.
(6) Yusuf's FtT appeal a sufficient remedy. The SSHD contended in the detailed grounds of resistance that this appeal would provide Yusuf with fair, adequate and proportionate protection so that he had a suitable alternative remedy which should be used as opposed to his claim for judicial review. These contentions were strongly opposed by Yusuf who maintained his claim to judicially review the decisions dated 13 November 2014 on a series of cumulative grounds since he was only able to appeal on human rights grounds and the failings of the SSHD in the decision-making process were so extensive that the whole decision should not be allowed to stand and should be re-taken on the correct bases. Those requirements could only be achieved if the first decision was quashed and then retaken in its entirety and only then should the possibility of a limited appeal to the FtT on the limited basis allowed to the claimants be considered.
- Overall, the SSHD contended that if permission was granted and the hearing of the claims set out in the amended grounds proceeded, the entire claim in its amended form should be stayed pending the resolution of the complete complaints procedure, the outcome of Yusuf's appeal and the reconsideration of the decision in Yakub's case. The claimants claimed that this series of proposals had been put forward at a very late stage as a cynical attempt to avoid a hearing and an investigation of the extensive failings of the SSHD or of an adequate award of damages for the extensive loss and damage those failings had caused.
- The claimants also complain about the extensive shortcomings in the decisions in Yakub's and Yusuf's cases. Yakub's decision making-process started on Thursday 2 October 2014 and was completed five working days later on 8 October 2014. The decision-maker had had no previous involvement with these applications and he failed to consider much of the extensive ten-year history of these applications or take account of most of the extensive and significant failings and acts and omissions amounting to maladministration that had occurred. He also took account unlawfully Yakub's spent convictions, failed to consider – as he should have done - how his application would have been decided and on the grounds that would have been relied on had the decision been taken ten years earlier. On behalf of Yasin, similar complaints are made about the decision-making process in his case.
- In the case of Yusuf's decision, the decision-making process was even more truncated and was flawed from the outset. The decision that he should be deported was made by the CCD's Chief Case Worker on 26 September 2014 on the basis of very limited paperwork and after what could have been no more than a few minutes consideration of the case. He had had no previous involvement with Yusuf or his application. The decision was flawed because the decision-maker purported to decide that Yusuf should be deported before it was possible to make that decision. The law required Yusuf first to be served with a Notice of Deportation and a deportation questionnaire and for him to be allowed an opportunity to make submissions and respond to the questionnaire. Furthermore, the decision-maker had first to put out of consideration all spent convictions and to decide the application on its merits and not as an adjunct to and as an automatic follow-up to the decision to deport him. The decision was also flawed because it was taken twice. The first decision by the Chief Case Worker was the determinative decision but in law it was not a decision at all but an instruction to the decision-maker who took the decision on 13 November 2014 what the crucial decisions should be. The determinative decision was therefore not that of the decision-maker since it was prejudged by the Chief Case Worker's instructions and did not amount to a fresh decision of the decision-maker exercising his own discretion unfettered by the previous decision of the Chief Case Worker.
- Additional delay has occurred and will occur in the future amounting to at least a further eight months between the dates of the decisions, respectively 9 October 2014 and 13 November 2014 and the dates when the fresh decisions are taken in the future in Yusuf's and Yakub's cases in or after June 2015.
18.104.22.168. Causes of delay
- The additional delay of eight months or more has arisen because the SSHD did not make timeous decisions that complied with the law and which were rational and objectively fair. The SSHD then failed to make realistic proposals to settle all disputes but instead insisted on putting forward defences that had little prospects of success.
2.2. SSHD's evidence
- In the various cases concerned with immigration and nationality applications of Laila, Yasin, Yusuf and Yakub, references to the SSHD were to the UKBA which was, until the last few months of the period in question, an autonomous agency under the overall control of the SSHD whose principal Minister was the SSHD. Historically but inaccurately the SSHD has been regarded as the emanation of the organisation responsible for immigration. The UKBA's function was essentially to deal with applications from individuals concerning their immigration and nationality status and the enforcement of immigration law by regulating entry and taking removal and other enforcement action against those in breach of immigration law. The relevant part of the UKBA with which this case was concerned was the IND and the various Directorates and sections within the IND and the various units within each such Directorate and section that dealt with Laila, Yasin, Yusuf and Yakub's various applications between 1999 and 2014 since all those applications are related and each is concerned with their on-going attempts to obtain ILR, citizenship and the right to settle in the UK and the delays, maladministration and inefficiencies that have beset their fifteen-year application process that, even now, has not been completed.
- The IND's evidence came from two sources, internal disclosed documents and factual evidence from the one witness who provided a witness statement. The SSHD maintained paper hard copy files of every document arising out of each application of an individual; an electronic log, the GCID, on which should have been logged the entire input of every caseworker in every unit that had dealt with every immigration application of each applicant and other electronic indices and records and every letter or other document sent to or from the SSHD concerning that individual. The nature of this case is such that all these files and electronically stored records are disclosable and, so far as can be ascertained, have been disclosed. The only obvious possible exception relates to the applications made by or on behalf of each Said but, since the early files have been lost, the reality is that these documents are no longer available for disclosure. The disclosed documents contain apparent gaps but it is to be assumed that those apparently missing documents were never brought into existence – and are in consequence their non-existence is evidence that may be taken into account in deciding whether there was any maladministration – or have been lost.
- These documents were, in the main, only disclosed at a very late stage and not long before the hearing. All were relevant to and disclosable in the challenge to the failure to provide decisions in Yasin and Yusuf's 2004 applications since they all related to the delays that had occurred and were relevant to an examination of whether these delays gave rise to judicial review relief. The SSHD may not therefore excuse the failure to disclose any documents within a short time following the granting of permission on the fact that the claim for damages was added by amendment at a late stage following the service of the decisions in each of these three cases. Of necessity, the documents were all adduced into the hearing without being sorted into legible, intelligible and chronological order so that the task of analysing them has been unusually prolonged but it is clear that all relevant documents that the SSHD still has access to have been disclosed, adduced in evidence and considered in reaching the findings of fact.
- It is surprising that the SSHD chose to adduce only one witness statement and that from an Executive Officer in the OLCU in Liverpool who had only been involved in Yasin's case at a very late stage. He was working in unit 14 of the OLCU which was a unit concerned with migrant casework in the complex cases directorate that had been given ownership of this case in early October 2014 in order to resolve it prior to the hearing of this judicial review claim fixed for 16 October 2014. He worked on the case between 2 and 9 October 2014 when he took both decisions that were taken and he drafted the internal note that explained them. His brief evidence does not attempt to explain the delays that occurred that resulted in the failure to take these two decisions or Yusuf's decision during the 10-year period between 2004 and 2014 save in brief, general and unsubstantiated assertions.
- He stated that his evidence was based on the evidence in the files but he does not identify the sources that he relied on in any more detail and he either did not see or has ignored many of the disclosures that were placed in the trial bundle. In his witness statement, he gave an implausible explanation for the initial advice sent to Yasin and Yusuf by the SSHD to the effect that their applications would be determined within thirteen weeks after 1 September 2004. He also gave a brief and inaccurate account of the two-year period that the applications were being considered as part of the family exercise. He then made a passing reference to the period between 2006 and 2014 which he explained with the assertion that the SSHD appeared to have been proactively seeking to make a decision by requesting further information and by informing Yasin's solicitors that "your client's case is in the backlog of older asylum cases" and, for the period 2007 – 2009 that there were "no truly exceptional compassionate circumstances" to enable the decisions to be accelerated.
- Mr Wiggins's only attempt to analyse the causes of the delays that had occurred was in this passage:
"Finally, for the avoidance of doubt, the reasons for delay – as evidenced by the files – appear to be as follows:
(a) The fact that the applicant was in the UK illegally moved him down the 'priority'.
(b) Serious wider backlogs of outstanding asylum cases.
(c) The apparent lack of any 'exceptional circumstances' related to the application.
(d) A failed application for asylum.
(e) A failed application for the 'Family Exercise' concession."
It is to be noted that these reasons for delay are provided for "the applicant" and "the application". That was clearly a reference to the linked applications of Yasin and Yakub which, from an early stage in the history of their consideration were treated as being a single application which was placed on and given the reference number of Laila's principal file numbered S1028806. This explanation has no evidential weight since it is generalised and unsupported by the contents of the disclosed documents.
- The remainder of his witness statement provided an explanation of the RMS filing system and the way in which applicants' files were filed and numbered. It concluded with evidence of the discovery that Yusuf and Yakub's physical sub-files S1028806/002 and S1028806/03 had been lost. He made no reference to the loss of Yasin's file S1035356 that is also recorded in the disclosed documents.
2.3. Overall periods of delay
- Yasin's, Yusuf's and Yakub's immigration applications dated 1 September 2004 could and should have been decided within thirteen weeks of their submission. It is accepted by the SSHD that maladministration occurred but it does not accept that that maladministration had significant consequences. The detailed analysis that I have undertaken of the Saids' immigration history shows that the failure to decide these applications before the end of 2004 resulted from a lengthy list of actions and omissions by the SSHD which could and should have been avoided. There was, therefore significant delay occurring in the promulgation of these decisions.
2.4. When the decisions should have been taken
- The claims now made relate to delay in deciding Yusuf's and Yakub's applications date 1 September 2004. These should have been decided at the same time as, or soon after Laila was granted British citizenship. It follows that the SSHD should certainly have concluded its consideration of, and reached and promulgated its decisions in relation to the claimants' outstanding applications for ILR and settlement by, the end of 2004. The failure to make these decisions throughout the ensuing ten years was caused by the SSHD and the claimants had no overlapping responsibility for that failure. It follows that Yasin, Yusuf and Yakub each have a claim for the whole period of delay between 1 January 2005 and the date that their respective decision were promulgated. Yusuf and Yakub have further claims for the additional period that is still occurring being the period between the dates of their respective first decisions and of their second decisions once they are made and promulgated. These further decisions will have been necessitated by the setting aside of the first decisions as a result of this judgment and the consequent reconsideration of those decisions. It follows that the two applications should have been decided no later than 20 December 2004. This judgment decides below whether these claims give rise to any cause of action that may be relied on by the claimants and to awards to them of damages, declarations or other just satisfaction.
2.5. Content of decisions if taken promptly
- It is difficult to ascertain and make findings about the decisions that would have been made in Yasin, Yusuf and Yakub's cases had they been made promptly since the SSHD has provided no evidence relating to the decisions that might have been made if they had been taken in 2003 or 2004 or at any earlier date than the dates on which each was made. Moreover, the SSHD does not keep an accessible record of the content of the IRs and relevant policies at any particular time prior to the present This failure was commented on by Underhill LJ in Singh v SSHD in these terms:
"58. I should like to say something more about the point made in the previous paragraph. It is not uncommon for advisers in this field to need to know what the effect of the Rules was at some date in the past: despite the principle recognised in Odelola, historical information of this kind may be relevant in a variety of circumstances, as the present cases illustrate. Counsel were asked whether previous versions of the Rules were available online, either from legal publishers or on the Home Office website. In his post-hearing written submissions Mr Malik told us that he understood that it was possible to obtain from the National Archive website consolidated versions of the Immigration Rules as they stood at any given date. Mr Blundell, however, responded that that was not the case. The Home Office produces consolidated versions of the Rules following each Statement of Changes, and publishes the current version on its website, but previous versions are not displayed and whatever may be available from the National Archive is "not entirely accurate": the only way that a member of the public or practitioner can definitively ascertain the state of the Rules at a given time in the past is by perusal of the Statements of Changes. If that is really the case, it is unacceptable. The Statements of Changes are so frequent and so detailed that it would be intolerably laborious for anyone, even a specialist, to start with the current version and to work back, stage-by-stage, to establish how the Rules stood months or years previously. In my view it is essential that the Home Office should make available an archive of all previous consolidated versions of the Rules in a form that enables the public and practitioners to see clearly what rules were in force at any given date: if such an archive is not maintained for working purposes within the Home Office (which would be surprising) it will have to be created, though I pity whoever has to undertake the task. ".
The SSHD has not followed this advice and has given no indication that it intends to do so. In the context of these cases, with a ten-year delay in reaching decisions during which there had been unprecedented changes in relevant IRs and SSHD's policies, the absence of any ready way to access these changes greatly hampered decision-makers and amounted to significant maladministration by the SSHD. A further deficiency is that it has not disclosed copies of the IRs and any relevant policies in force in 2004 which would have shaped the content of those hypothetical decisions. The Saids' counsel have only been able to obtain copies of some of these relevant documents from the SSHD archive to which they have added submissions based on their own professional experience of SSHD practice in granting ILR in previous years.
- The starting point for this historic consideration of the SSHD's practice in relation to applications for ILR and settlement is Laila's immigration status. The SSHD has given insufficient weight throughout the ten-year period of its consideration of the claimants' applications to Laila's British citizenship and in particular to its historical origins, namely that she was an early recipient of the change in the law brought about by the NIAA 2002. Laila is a third generation CUKC who, like her forebears and other CUKCs in her situation, was born and lived in Kenya but who was the unwitting victim of two historic injustices. Firstly, on Kenyan independence, Laila was denied the opportunity of acquiring dual nationality by the Kenyan Government so that she remained a CUKC whose status in Kenya was precarious since she was only permitted a right of abode in Kenya under Kenyan law whilst her marriage subsisted and she remained living in Kenya. Secondly, when in 1982 the BNA 1982 was passed, she like other CUKCs living in Kenya lost the right of abode in the UK and a new form of status was created for people like her, being that of BOC, to replace their previous status of CUKC. She therefore remained a nominal British citizen with a British passport but with no right of abode in the UK so that she would from 1982 onwards have become effectively stateless if she ceased to live or was no longer allowed to live in Kenya.
- It was because of these twin perceived injustices afflicting BOCs that in 2002 the UK Government added section 4B to the BNA 1982 by section 12 of the NIAA 2002 so as to entitle BOCs with no other nationality to register as British citizens and acquire a right of abode in the UK. Thus, Laila having lost her birth right of the right of abode in the UK in 1982 reacquired that right in 2002. Moreover, she had already moved to the UK with her two sons in 1999 and had been attempting since then to acquire a right of abode for herself and both of them initially through an unsuccessful asylum application and then in an ongoing human rights application. Finally, by the time that she was able to apply to be registered as a British citizen, her husband of many years and who had come separately to the UK at the same time as her and their two sons had been reunited with his family and was also seeking a right of abode with them in an on-going human rights application.
- It followed that Yasin's, Yusuf's and Yakub's applications for ILR and settlement dated 1 September 2004 had the following common background:
(1) They were Kenyan citizens who had left Kenya with the intention of settling in the UK with Laila at the same time as Laila, who was a BOC with no right of abode in the UK, had also left Kenya with the same intention of settling in the UK. The four were leaving Kenya because of the racial discrimination each was suffering and, by leaving Kenya, Laila lost the right of return and had become effectively stateless.
(2) By 2003, all four Saids had been living in the UK for nearly 4 years, each had attempted unsuccessfully to claim asylum and each had on-going human rights applications for LTR in the UK based in Laila's case on her pre-October 2003 BOC status as someone who was stateless and unable to return to Kenya and in Yasin's, Yusuf's and Yakub's cases on their dependence on and relationship to Laila and their individual wish to maintain a family life with her in the UK.
(3) Laila's immigration status was transformed by the creation of her statutory entitlement to British citizenship and the right of abode or settlement in the UK as a result of the coming into force of section 4B of the BNA 1982 and her obtaining that entitlement on 13 October 2003.
(4) Before Laila had been granted British citizenship and the right of abode in the UK, Yasin had been applying for LTR in an application dated 3 December 2002 as Laila's husband, Yusuf had been applying for LTR in Laila's application dated 22 January 2002 as her dependent adult son and Yakub had also been applying for LTR in the same application dated 22 January 2002 as her child dependent son.
(5) Following Laila's application for and receipt of British citizenship and the right of abode in the UK, Yasin's, Yusuf's and Yakub's applications for LTR were transformed into applications for ILR and settlement. In Yasin's case that transformation was achieved by his SET(M) application dated 1 September 2004. In Yusuf's and Yakub's cases, it was achieved in two stages. Initially, both applied for ILR and settlement as Laila's dependent sons as an adjunct to her application for British citizenship dated 13 March 2003. Subsequently, Yusuf applied in his SET (O) application dated 1 September 2004 for ILR and settlement as Laila's adult dependent son and Yakub as Yasin's and Laila's child dependent son in Yasin's 1 September 2004 application.
(6) The two applications dated 1 September 2004 were made in order to consolidate the transformation of their applications from human rights applications for LTR to applications under the IRs for ILR and settlement and to provide a basis applications for ILR and the right of abode in the UK with Laila. The SSHD having accepted the fees for each of them and that they were admissible, directed that they should be linked, that is that they should be considered and decided together.
- A yet further feature of this common background was an absence of a new IR or statement of policy introduced to give effect to the policy that the SSHD intended to apply to those applying for British citizenship under section 4B of the BNA 1982. It followed that an applicant on or after that section came into force on 30 April 2003 who was seeking to rely on his or his sponsor's application for or grant of British citizenship had to bring an application for LTE or LTR under paragraphs 277 – 289 and 296 – 303 of the then existing IRs or rely on a somewhat nebulous human rights application for DLR. The IRs prior to the coming into force of section 4B of course made no mention of or any separate provision for those applying for or being granted section 4B British citizenship or as dependents of applicants or beneficiaries of section 4B British citizenship. The clear intention of the amendment introduced by section 4B was to give all BOCs, whether located in relevant countries such as Kenya or in the UK who were or who would become effectively stateless in the future, the right to apply for British citizenship and for their dependants following their being granted British citizenship to be treated in any application for LTR on the same footing as dependants of settled British citizens. Since this amended right to claim British citizenship was introduced to remedy an historic injustice, it was in terms one that applied to those who were already resident in the UK – albeit unlawfully – who were both BOCs and effectively stateless since the primary legislation granted the remedy to all qualifying BOCs whether resident in the UK or elsewhere.
- Unfortunately, the existing IRs did not permit dependent spouses, children or adults of a British citizen to apply as such unless the application was made whilst the applicant was outside the UK or from within the UK at a time when the applicant had existing LTE or LTR that had been granted in a relevant category. It was to be expected that the SSHD would have made provision for dependent applicants of those BOC residents granted section 4B citizenship who were also present in the UK when section 4B came into force since such applicants were not provided for in the IRs but who were clearly within the scope of the new legislation. In other words, it was to be expected that provision for such transitional cases would have been made by way of an IR amendment or by the issue of policy guidance but no such provision was in fact made. Neither Yasin or Yakub therefore qualified for ILR under the IRs even though they were already resident in the UK and were living with and claiming ILR dependency as the spouse or a child of someone who had been granted section 4B British citizenship whilst living in the UK. Moreover, it was to be expected that the categories of those eligible to apply for SET(O) would have been extended to cover those claiming settlement as a result of the dependency on a section 4B British citizen but no such extension appears to have been made.
- Yusuf's SET(O) application had been complicated by his conviction, sentence and imprisonment for GBH and other offences. He had been sentenced to an eighteen-month term on 20 August 2004 5 days after he had signed off and submitted his application. He was released from prison on 7 March 2005 and his sentence was completed on 15 June 2006. His conviction did not become spent until 15 August 2014 but that date was changed to 15 June 2010 on the coming into force of LASPO on 1 October 2012.
2.5.2. SET applications
- Yasin and Yakub. Yasin's application was made on the 08/2003 version of the SET(M) application form which was dated 2 June 2004. In it, he stated that he was making the application as the spouse of a person who was present and settled in the UK and was a British citizen. He answered the following question "yes":
"Do you or your spouse or partner have any children from your marriage or relationship or from previous relationships who are dependent on your or your spouse or partner?"
He then gave details of Yakub and stated that his parents paid for his support and that his spouse was working part time in the UK. The application was accompanied by documents supporting his application and that of Yakub that was included in it as well as documents showing that his spouse was present and settled in the UK, that he had the funds to maintain and accommodate himself and any dependants without recourse to public funds and that he and his spouse had completed twelve months' stay in the UK in a subsisting marriage to his spouse. He signed the following declaration:
"I hereby apply for indefinite leave to remain in the UK for myself, and any dependent children listed in this form, on the basis of my marriage to the person who has signed the declaration below. I declare that we are still married that we are living together as husband and wife and intend to do so permanently. .. ."
Laila signed the following declaration that was made "by the applicant's husband or wife":
"I confirm that I am the husband/wife of the applicant. I declare that we are still married, that we are living together as husband and wife and intend to do so permanently. … ."
- Yusuf. Yusuf's application was made on the 08/2003 version of the SET(O) form which was dated 12 August 2004. Section 3 of the form asked: "Under which category are you applying?" and then provided 8 tick boxes as follows:
Work permit holder
Employment not requiring a work permit
Writer, composer or artist
Highly Skilled Migrant Programme
Long residence in the UK
Victim of domestic violence
Other (See Note 1). If you tick this box you must explain why you want to stay here. Your reasons should be set out briefly in the box below and in more detail in a separate letter or document. You must also provide any supporting evidence.
In the box, Yusuf had written:
"My mother is a British citizen. I came to UK with my family to settle here and we have no family elsewhere."
Note 1 stated:
"Before making an application in this category, you should refer to the Guidance Notes to check that your case does not fall within a category for which a separate application form has been prescribed. In addition, in certain circumstances it Is not necessary to complete an application form; these are set out in the Guidance Notes."
Unfortunately, no copy of the 08/2003 SET(O) Guidance Notes was disclosed or had been found to be accessible as Archived Material.
Section 7J was concerned with "Other" applications and stated:
"If you are applying for indefinite leave to remain in the UK for any other purposes or reason, a letter or other document explaining why you should be given indefinite leave to remain. You must give full details and provide any relevant document(s) to support your case."
Yusuf signed the following declaration:
"I hereby apply for indefinite leave to remain in the UK for myself … ."
It would appear from the form, and was no doubt elaborated upon in the Guidance Notes, that a SET(O) application was intended for those who were applying for ILR and settlement under one of the categories that were defined in the IRs as being appropriate for a settlement application and were listed in the Guidance Notes as being a category for which the application for settlement had to be made on a SET(O) form or for those applying for settlement pursuant to a concession outside the IRs or on compassionate grounds. It was also apparent that Yusuf was signing the form under the "Other" category and on the basis of Laila's British citizenship and settlement rights granted pursuant to section 4A of the BNA 1982.
2.5.3. Yasin's SET(M) application
- Yasin's application for settlement was not expressly made under the IRs. Since he was present in the UK, he could only apply for ILR under paragraph 287 of the IRs, the material part of which states:
"287(a) The requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom are that:
(i) (a) the applicant was admitted to the United Kingdom for a period not exceeding 27 months or given an extension of stay for a period of 2 years in accordance with paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of a person present and settled in the United Kingdom; or … ."
However, that paragraph was not applicable to Yasin because he had been admitted to the UK for a six-month period so that he had been admitted as a visitor and not under IR paragraphs 281 – 286. Moreover, he no longer had LTR when he made this application so that he was unable to apply for settlement under IR paragraph 287 even if all other provisions were applicable.
- There were, however two separate but parallel ways in which Yasin was entitled to have his SET(M) claim considered. The first was by way of an exercise of discretion by the SSHD to waive the two requirements of the IRs that he was unable to comply with so as to grant him ILR although he currently (i.e. on 20 December 2004) had no LTR and his original LTE had not been granted under paragraphs 281 – 286 but as a visitor. There were several good reasons for taking this exceptional course that included the following:
(1) Laila and Yasin were both present in the UK because they had left Kenya because of the racial discrimination that they had suffered and Laila was unable to return.
(2) Laila had been granted ILR immediately after the BNA 1982 had been amended to permit her to convert her BOC which gave her no settlement rights into British citizenship with the right to settle in the UK. Had she and Yasin still been in Kenya in 2003 when the law was changed and had then both made applications to the SSHD, in Laila's case for British citizenship and in Yasin's for LTE as the spouse of a British citizen, it is likely that both applications would have been granted given the exceptional situation and change of the law that had occurred so as to allow those in Laila's position a full right of abode in the UK. It would have been a travesty if Yasin could not have taken advantage of Laila's change of status and acquisition of British citizenship despite his stronger claim as her spouse who had already been living in the UK for five years, and who was living with his spouse who had recently been granted British citizenship and the right to settle in the UK having been living here for five years.
(3) Yasin was one of those that the recently introduced section 4B was intended to apply to since he was the resident spouse of a section 4B British citizen who had been granted citizenship whilst resident in the UK.
(4) Both Laila and Yasin had been resident in the UK for over 5 years and both were conviction-free and contributing members of UK society.
(5) The concessions referred to would give effect to the intention of the legislative change that had added section 4B to the BNA 1982 which was to grant Laila British citizenship so as to right the historic injustices she had been subjected to and for her spouse to be treated as the spouse of a British citizen from the moment she acquired British citizenship.
(6) Yasin could and should have been granted ILR as Laila's spouse soon after she had been granted citizenship in October 2003 pursuant to his human rights fresh claim and no reason let alone satisfactory reason has ever been given why this grant had not been made.
- As an alternative, Yasin's application for SET(M) could have been considered as a human rights claim under article 8 on the basis that a failure to grant him ILR would be to significantly interfere with his family and private life given that Laila could not join him in Kenya given her British citizenship. The decision-maker could have granted him ILR on this basis or, if not minded to grant that, could have exercised his discretion to grant him DLR on article 8 grounds the then conventional period of twenty-seven months or possibly three years at the end of which he would have qualified for settlement.
- The most likely outcome, as I find in the absence of any evidence from the SSHD on this issue, is that Yasin would have been granted ILR in the exercise of the SSHD's discretion under the IRs to waive the two requirements preventing a grant under paragraph 287(a) of the IRs.
2.5.4. Yakub's SET(M) child dependency application
- In Yakub's case, his application should only have been considered once Yasin's application had been considered and ILR (or LTR) had been granted to Yasin. In such circumstances, Yakub's application should have been considered under paragraph 298 of the IRs the material parts of which state:
"298. The requirements to be met by a person seeking indefinite leave to remain in the United Kingdom as the child of a parent, parents or a relative present and settled in the United Kingdom are that he:
(i) is seeking to remain with a parent, parents or a relative in one of the following circumstances:
(a) both parents are present and settled in the United Kingdom; … and
(ii) he has or has had limited leave to enter or remain in the United Kingdom, and
(a) is under the age of 18; … ."
- It is also pertinent to refer to the SSHD's policy in 2004 relating to applications made on behalf of a child who was under eighteen and therefore still a child when the application was made but who had reached his eighteenth birthday before the application was decided and was therefore an adult when it was decided. In such a case, the clearly stated policy was to decide the application as if the applicant was still a child. Thus, Yakub's application would have been decided on the basis that he was still a child even if it was only decided after his eighteenth birthday on 17 March 2005. Applications in 2004 made on behalf of a child dependant were decided promptly and a child dependant would ordinarily have been granted ILR where his sponsoring mother was a British citizen who was settled in the UK.
- He would have complied with the requirements of these paragraphs save that he did not currently (i.e. on 20 December 2004) have LTR in the UK as required by paragraph 298(ii). Once Yasin had been granted ILR, both his parents would have been settled in the UK as required by paragraph 298(i)(a). The SSHD could have, and as I find should have and on the balance of probabilities would have, waived the requirement that he already had to have limited LTR for the same reasons as were applicable to Yasin's case with the additional reason that Yakub should have been granted ILR pursuant to his application dated 13 March 2003 at the same time or soon after Laila was granted British citizenship. He should not therefore have needed to re-apply for ILR as part of Yasin's application dated 1 September 2004 since he should already have been granted ILR when this had been applied for on his behalf as the child dependent of his mother Laila who had recently been granted British citizenship and the right to settle in the UK.
2.5.5. Yusuf's SET(O) application
- Yusuf's SET(O) application was different in two respects from both Yasin's and Yakub's applications. Firstly, he was an adult and there was no paragraph of the IRs applicable to him whether or not one of its conditions was waived by the SSHD. His application therefore had to be considered solely as a discretionary exercise as a human rights claim. Secondly, he had been sentenced to 18 months imprisonment for GBH a few days after his application had been submitted.
- The first of these differences was not problematic since he would have been granted ILR as a discretionary exercise of the SSHD's powers for family and private life reasons arising out of the same reasons as were applicable to Yakub particularly since he fell within the "Other" category on the SET(O) form and should have been able but for the failure to amend the IRs or publish appropriate guidance, to have applied under a new particular category related to the dependents of section 4B British citizens. The second of these difficulties would have given rise to careful thought. The decision-maker would have needed to consider the full circumstances of the offence and the reasons for an apparently very light sentence as well as the absence of a recommendation of deportation from the sentencing judge, whether deportation was necessary as being conducive to the public good and his risk to the public if allowed to stay in the UK after his release from prison. Yusuf's SET(O) application would, in December 2004, have been considered soon after the Court of Appeal decision in N v SSHD which held that appropriate weight had to be given to the deterrent policy of the SSHD. However, the majority decision also stated that the issue of conducivity involved a balancing exercise as provided for by the then version of paragraph 364 of the IRs which in substance was the same as the balancing exercise to be performed article 8. That balancing exercise, in late 2004, involved weighing up and balancing the policy of deterrence and the risk of re-offending, the extent of the foreign criminal's rehabilitation and all other article 8 considerations.
- I consider that a decision-maker in late 2004 would have appreciated the difficulty posed by this particular balancing exercise given, in particular, the seriousness of Yusuf's offence which had to be balanced against many other weighty considerations including his significant available mitigation and light sentence, the strength of his article 8 case in relation to the family and private live he had built up in his five years residence in the UK, his youthfulness and total dependence on Laila and her having recently been granted British citizenship as a BOC formerly resident in Kenya, his lack of any remaining ties in Kenya and the racial discrimination that he would probably experience if he was returned there. I conclude that, in those circumstances, Yusuf would have been granted limited LTR to take him up to the end of the custodial part of his sentence – probably for a period of one year – at which point his status in the UK would have been considered afresh. When that occurred, I find that the likely outcome would have been a further period of twenty-seven months LTR at which point he could have applied for ILR and settlement. In reaching this conclusion, I take account of the repeated occasions subsequently when SSHD officials considering his case were aware of his conviction and appear to have concluded on each occasion that his case should not be referred to the CCD for consideration for deportation and that he should instead be considered favourably for LTR.
2.5.6. Conclusion – SET application decisions
- The SSHD has not advanced any evidence to show what the decisions in each of three cases would have been if they had been taken on or before 20 December 2004. I conclude that, given that Laila's case was dealt with in October 2003 within seven months of it being made and that that decision should have been coupled with favourable ILR decisions of Yasin's, Yusuf's and Yakub's then outstanding applications, the three decisions relating to the two applications dated 1 September 2004 should have been provided by 20 December 2004 within the projected timescale whatever backlog had built up in the unit these applications had been assigned to. These applications were identical to applications whose consideration had been on-going for many months. They could have been treated as exceptional cases, would not have required much work in order for them to be decided and should have been assigned directly to the Directorate and unit dealing with Laila's British citizenship application and their outstanding applications of January 2002, December 2002 and March 2003. Moreover, the SSHD has not advanced any reason for not treating these applications in this way.
- Had those decisions been taken on or before 20 December 2004, Yasin and Yakub would have been granted ILR under the rules as the spouse and child dependant of a British citizen who was present and settled in the UK and who were both present and living with that person.
- Yusuf's application would also have been resolved at that time albeit that the decision would probably have been to grant him LTR for one year pending his release from prison followed by a grant of LTR of twenty-seven months followed by ILR
2.6. Said family evidence
- Yasin's evidence. Yasin made one witness statement dated 25 November 2014. His general evidence was that he had always been a mechanic in both Kenya and the UK. He initially worked for a series of car repair garages but was never able to hold down a permanent job since he was unable to obtain a driving licence or a MOT qualification given his unresolved immigration status so that he could not test drive or MOT any car. In 2003, he became self-employed and ran his own car repair business based in Peterborough but was never able to grow this due to his inability to test drive, pick-up or drop-off any car. He was unable to afford to employ someone to undertake these tasks and his profit in 2010 – 2011, after some seven years of trading, was £9,709 and for 2011 – 2012 was £8,658. He had declared his income in full throughout to HMRC and paid all income tax due on his earnings. Whilst he was operating that business, Yakub helped him and has taken it over following Yasin's illness and death.
- Due to his not having any right to remain in the UK, with its consequent inability to earn any significant amount, he was unable to be the bread winner and has been dependant on Laila which, given his cultural background, has been personally humiliating for him. Furthermore, he has been unable to travel and was unable to attend the funerals of neither his mother nor his father nor visit his sister in Switzerland. He has also been unable to watch and participate in his sons' life progression or in their building a career.
- Laila's evidence. Laila's evidence was set out in a letter she wrote in support of Yusuf in his evidence submitted in opposition to the notice of intention to depart that was dated 18 October 2014 and in her witness statement dated 25 November 2014. She explained that she initially trained as an auxiliary nurse but because she could not obtain a training position in Peterborough, she trained and worked in Reading. She travelled home to Peterborough every weekend with Yakub. Having qualified in 2006, she could only obtain work in Reading where she worked as a surgical nurse and lived in rented accommodation in Slough during the week and returned home to Peterborough at weekends. Yakub stayed with her until 2010. She bought the family home in Peterborough in June 2008 in her sole name because Yasin could not obtain a mortgage in his name or in their joint names due to his lack of residency status. In December 2010, she moved to Peterborough to be with her family full time, taking agency nursing work doing night shifts. She specialised in surgical, elderly care and community nursing.
- Laila's evidence was that her and her family's working, social and private lives have been eclipsed over the last ten years due to the lack of immigration status of Yasin, Yusuf and Yakub. She is particularly guilty when she considers her sons' blighted professional lives due to their lack of status and her having brought them to the UK in the first place in order to better their lives.
- She confirmed that she obtained a guardianship order over Yusuf's son and his adopted son and that they lived with her and Yasin and that she had looked after them for 3 years until 2014 when Yasin was diagnosed with cancer. The reason was that their mother Karen was unable to look after them but her mental state had stabilised in 2014 prior to the children returning to live with her. She also confirmed that Yusuf and Yakub had not told her about her other four grandchildren until recently because they did not want her to worry about them with everything else that she was concerned with.
- In her letter, she explained that Yusuf was unable to open a bank account, take an apprenticeship or regular employment and she could not afford to put him through further education. He had wanted to qualify as a plumber that was not possible due to his lack of immigration status.
- Yusuf's evidence. Yusuf's evidence was set out in his letter written in opposition to the notice of intention to deport him dated 18 October 2014 and in his witness statement dated 25 November 2014. Yusuf's additional evidence addressed his conviction, his relationships and his three children and the effect on him of the 10 year interval between his application for ILR and its final determination. In relation to his conviction, he stated that the affray was not premeditated. He felt and continues to feel shame and embarrassment about his convictions. He has always had considerable difficulty obtaining and maintaining a job as a welder and fabricator. He obtained casual work because it was impossible to obtain employment on a building site due to his precarious immigration status and because, without a driving licence, he could not drive himself from site to site.
- Yusuf confirmed that he had worked intermittently as a welder and fabricator in the building trade, in recent years in the Peterborough area. He had known Debra for many years before he started his relationship with her in 2010 and that they had had two children. He had kept this relationship and the existence of his two children with Debra from his parents because he did not want to burden her with his problems. He regularly visited his parents in Peterborough and during the week he lived in a small rented flat in Reading. When he was arrested on 1 September 2014, he had not been involved in the scuffle that had led to many of those in the vicinity being arrested. He had not informed the Police about Debra and his two children when he was interviewed following that arrest with her because he was out in Peterborough and did not want them to be involved in his problems, particularly as she was living some distance away in Reading.
- Yusuf's oldest son from his relationship with Karen is now 11 and his unofficial step-son whose mother is Karen and whose father is another man who has never had any role in her life is now nine. They reside with their mother in Peterborough. Yusuf remains on good terms with Karen although their relationship broke down in 2010. He has regular contact with both children who lived with and were cared for by Laila and Yasin under a Guardianship order between 2011 and 2014 and they see their grandmother every weekend. Yusuf's two sons from his relationship with Debra are now three and two and they live with their mother and her two children from a previous relationship in Reading. He moved back to the family home in Peterborough to help his mother and now lives on his own in an address in Peterborough. However, his relationship with Debra continues and he has regular contact with her and their two sons.
- Debra's evidence. Debra's evidence was set out in her letter dated 18 October 2014 that was written in support of Yusuf's opposition of the notice of intention to deport him. She stated that he had helped and supported her and her two older children when her former partner left them and also their two children. If he was to be taken away from her and his four children, she would not know what they would do without him.
- Yakub's evidence. Yakub's evidence was set out in his letter that was written in support of his opposition to a grant of only thirty months DLR which is undated but was written in October 2014 the notice of intention to deport him dated 18 October 2014 and in his witness statement dated 25 November 2014. He confirmed that he was unable to enrol on a plumbing apprenticeship since he was required to produce a visa and also a valid driving licence which both required his immigration status to be regularised. He, like Yusuf, kept the fact that he and Nassim had had two children because he did not want to burden her with further responsibility.
- His two sons from his relationship with Nassim are now five and three. He lives with his mother at the Said family home in Peterborough but Nassim and their two sons also live in Peterborough and their relationship continues. He spends much of his time with Nassim and their two sons who have a close relationship with Laila and with Yusuf's three children and one unofficial step-child.
- Nassim's evidence. Nassim's evidence was set out in her letter dated 23 October 2014 that was written in support of Yakub's opposition to his grant of only thirty months DLR. She stated that she and Yakub had been in a relationship for five years and he has been a fantastic father to their two children who are now aged five and three. She maintained that she had told lies to her social worker which had got Yakub into a lot of trouble. He was not a nasty bully as she had asserted and, according to Yakub, she admitted that he had not struck or battered her. He is very supportive of their two children and they have recently settled into a very stable relationship.
- Documentary evidence. Yusuf and Yakub produced copies of birth certificates to show that they were the registered fathers of, in Yusuf's case, the elder child that Karen had given birth to and, in Nassim's case, the two children that she had given birth to.
- Marie Blackburn's evidence. Marie Blackburn is Laila's elder sister and she has lived in England for over 30 years. She confirmed the stress that her sister, brother-in-law and two nephews had been under since their arrival in the UK and that her two nephews had been unable to pursue any career training or further education. She considered that their emotional and psychological development had been severely blighted by their inability to regularise their immigration status. These stresses and difficulties had placed an enormous burden on her sister and that her physical and mental health had deteriorated as a result.
- Overall. The combined evidence of the Said family was that none of them had ever drawn state benefits.
2.7. Expert evidence
- Introduction. The Said family had obtained two experts' reports, from a social worker and a psychologist. No permission had been obtained from the court under CPR 35.15 for such evidence and it had been submitted at a late stage before the hearing. I have considered this evidence having admitted it provisionally and I consider below whether I should exceptionally allow this evidence to be adduced as expert evidence.
- Ms Rosaleen Brown's expert evidence. Ms Rosaleen Brown qualified as a qualified social in 2004 having previously acquired over ten years of experience in social care. She has specialised in community adult and older adult mental health and she remains in practice in a fully generic Emergency Duty Team. She has particular expertise in parental mental illness and disability and families in community mental health settings.
- Her evidence summarised the factual background in similar terms to those set out in this judgment. She then expressed her opinion on three matters. The first was what the impact the delay in deciding Yasin, Yusuf and Yakub's applications has had on the family. Her view was that the delay had caused both Yusuf and Yakub to become, as she put it, disincentivised, apathetic and unable to commit to relationships, children for whom they have responsibilities and on professional careers.
- The second was what the impact of having to relocate to Kenya would have on Yusuf. She confirmed that his view that he expressed to her was that he had connections in Kenya, his three natural children and one unofficially adopted child were resident in England and could not reasonably be expected to join him in Kenya and the underlying anxiety that he would be forced to return was enormous. The third was what the impact of his relocation would be on his children. They were young, in the case of two of them very young and they would be likely to feel a sense of rejection and abandonment. Experience has shown that children who experience such feelings are likely to grow up with psychological and behavioural problems. It was unlikely that Yusuf would have the resources to communicate electronically with his children if required to relocate to Kenya.
- Ms Brown was also asked to express a view as to what would be in the best interests of Yusuf's three children. She considered that this particular family was both extended and very close and the effect of removing Yusuf their father and role model was likely to have far-reaching and adverse consequences which could have life-long impacts on each of them.
- Dr Rozmin Halari's expert evidence. Dr Rozmin Harari is a Chartered Clinical Psychologist with ten years' experience in the assessments and the provision of therapies to adults, couples and families including those with complex mental health problems as well as with children and adolescents.
- He was also asked to advise on the issues that Ms Brown had advised about. He considered that Yasin suffered from severe levels of depression and that years of uncertainty had left both Yusuf and Yakub experiencing fluctuating levels of anxiety and depression and low moods and low self-confidence. He undertook a forensic risk assessment of both Yusuf and Yakub and concluded that their risk of re-offending was low. He also considered that the best interests of Yusuf's children was clearly in favour of their father remaining in England and that his relocation to Kenya would be detrimental to their social and emotional development.
- Mr C E Moss's expert evidence. Mr Moss is a consultant in Oral, Maxillofacial Head and Neck Surgery at Peterborough and Stamford Hospitals. He confirmed that Yasin had suffered from a tumour which had originally been diagnosed in April 2014 He was operated on soon afterwards but its reoccurrence was diagnosed on 11 December 2014 with a limited life expectancy of one to two months. Further ameliorative surgery was undertaken soon afterwards.
- Ms Shradra Premji's evidence of fact. Ms Premji was the file holder of the Said family's solicitors. She explained why the claimants did not accept that the judicial review should be stayed to await the conclusion of the complaints procedure, Yusuf's appeal to the FtT and the reconsideration of Yakub's decision.
D. Issue 3 – Permission to Amend
- Introduction. This issue must be considered with the procedural chronology in mind. The claimants had been waiting for decisions in their applications dated 1 September 2004 for nearly eight years and had made repeated efforts to obtain those decisions when the first of three pre-action protocol letters was written dated 27 July 2012 threatening judicial review seeking mandatory orders compelling their production if these were not produced within a reasonable time. This elicited an uninformative holding reply. A second pre-action protocol letter dated 10 October 2012 was sent calling for decisions within thirty days. This letter was not responded to. A third pre-action protocol letter dated 10 December 2012 was sent and not responded to. In consequence, a judicial review claim form seeking mandatory orders for the production of the decisions due to the unlawful delay in producing them was filed on 18 April 2013. The acknowledgement of service served on 29 May 2013 did not plead to the allegations of delay. It stated that the decisions would be served within six months in the absence of special circumstances and in consequence requested the court to refuse permission to apply for judicial review without making an offer to pay the claimants costs. However, the court granted permission on 23 July 2013 on the grounds that it was arguable that the delay was unlawful. The SSHD was ordered to serve a detailed defence within thirty-five days accompanied by the disclosure of all relevant documents.
- The promised decisions were not served despite there being no special circumstances and the detailed defence and disclosure were not provided. The substantive hearing date of 16 October 2014 was fixed in the early autumn of 2013. On 12 December 2013, in response to a query from Laila's MP, the SSHD stated that the claimants would receive decisions within six months but this promise too was not complied with. On 25 September 2014, Yusuf was served without prior warning with a Notice of Liability for Deportation and an accompanying Liability for Deportation Questionnaire based on his long-standing conviction and sentence that was imposed on 15 August 2004. The claimants' solicitor served a skeleton and a hearing bundle prior to the hearing on 16 October 2014 without the SSHD having served grounds of defence. Limited but incomplete disclosure was provided just before the hearing.
- When the hearing was called on, counsel instructed on behalf of the SSHD informed the court and the claimants that decisions had been made in Yasin and Yakub's cases although these decisions had not been formally served. Yasin learnt that he had been granted ILR and Yakub that he had been granted DLR for one day although it was stated that that was a mistake and the decision was in fact to grant him DLR for thirty months. The court was also informed that a decision was being prepared in Yusuf's case. At the hearing, the claimants' counsel informed the court that Yusuf wished to apply for permission to amend his claim to add a claim seeking judicial review of the decision to serve a Notice of Liability to Deportation which she contended was served in an attempt to avoid the consequences of the continued non-service of a decision in his case. She also indicated that Yakub was minded to apply to amend his claim to challenge the grant of only twenty-four months DLR once the decision in his case had been formally served on him. It was finally intimated that the claimants would also be applying for permission to amend to claim damages under the HRA for the abuse of their article 8 rights as a result of the long delay that had occurred.
- In those circumstances, the hearing, which had been opened and in which detailed submission had been made and which lasted for about three hours, was adjourned with a detailed extempore ruling and directions being made. These included the following:
(1) Yusuf was to provide answers to the questionnaire by 23 October 2014;
(2) The SSHD was to provide decisions in relation to all three claimants by 13 November 2014;
(3) Both parties were to provide full disclosure by 20 November 2014;
(4) The claimants were to serve amended grounds of review and witness statements by 27 November 2014;
(5) The SSHD was to serve detailed grounds of defence by 11 December 2014 accompanied by all witness statements and further documents relied on;
(6) Skeletons were to be served; and
(7) The adjourned hearing was to take place on 19 December 2014.
- These directions were complied with. The SSHD gave notice that it would object to permission to amend the grounds of claim being given, that if permission to amend was given it would object to permission being granted to proceed to a full judicial review hearing and that if permission was granted, that the hearing should be adjourned to enable it to prepare fully for the hearing.
- Grounds of objection to the amendments. The SSHD's contentions may be summarised into these propositions:
(1) The amendments seek to raise three new groups of claims, namely that:
(a) The decisions in Yakub's and Yusuf's cases should be judicially reviewed and set aside;
(b) The court should grant declarations in each case; and
(c) Each claimant should recover substantial damages arising from the breaches of each of their article 8 rights.
(2) These amendments are opposed on the grounds that they:
(1) Are brought too late to be added to the claim;
(2) Are inadequately pleaded with insufficient particulars;
(3) Have no prospects of success;
(4) Each claimant has an alternative remedy and/or the claims are academic.
- Discussion. In addressing these and the issues concerned with permission to apply for judicial review, a stay of proceedings and an adjournment of the hearing, I must take into account my findings of fact, the SSHD's admission that delay was caused by its maladministration, the procedural history of this judicial review and the submissions and ruling made at the adjourned hearing on 16 October 2014. Taking all these matters into account, I would summarise my starting point in addressing the SSHD's submissions in support of its opposition to the amendment application:
(1) Given the exceptional delay that has occurred and the SSHD's admission that at least some part of that delay was caused by its maladministration, I decided that I should first analyse the claimants' entire immigration history as disclosed by the available evidence and make findings of fact as to the nature, length and causes of that delay.
(2) The SSHD has known since at least July 2012 that that history is highly material to the claimants applications and judicial review claims for the long outstanding decisions to their LTR applications which have always had a strong likelihood of success since they are grounded on being the spouse and children of a settled British citizen and many years residence in the UK. The SSHD has, furthermore, made two firm assurances that the judicial review claims are no longer necessary since the decisions will be forthcoming but those assurances were not fulfilled. In making those assurances, the SSHD had, or should have, reviewed the entire history of delay and obtained and reviewed all surviving and accessible documents including copies of all GCID logs relating to the Said family.
(3) The SSHD has failed to comply with any relevant orders relating to this judicial review and only produced the relevant decisions a few days before the hearings on 16 October and 19 December 2014 as a response to and in an attempt to preclude a hearing of the imminent substantive hearing of the claimants' claims.
(4) The original claim included, or must reasonably have been taken to have included, the possibility of claims for declarations and damages and of claims to set aside any decision given the extreme nature of the delays that had occurred. All these claims were, or should reasonably have been considered to have been heavily dependent on full disclosure of all relevant documents within the SSHD's control so that very late disclosure of its case as to delay and its evidence and all relevant documents would significantly hamper and prejudice the claimants' claims based on that delay.
(5) The SSHD's objection to the claim being amended was advanced at hearing on 16 October 2014, albeit that the claimants did not intimate a claim to set aside the decisions in Yusuf and Yakub's cases since these decisions were not then available. I effectively overruled those objections by directing an adjournment on terms that the amended claim document should be served and responded to.
(6) At the suggestion of both counsel, I agreed that if I awarded damages to the claimants, the quantification of damages would be adjourned to a separate hearing or determination following the handing down of this judgment.
- In the light of these considerations, I can determine the claimants' amendment application briefly. The application is not made too late, indeed it was served pursuant to my procedural directions and it could not have been made any earlier since it is heavily dependent on the SSHD's disclosure and the decisions in the LTR applications and was served as soon as possible after those documents had been served. The terms of the amendments are adequately pleaded in a full amended grounds document. The nature of the claim is clear and is supported by witness statements providing much evidence of the claimants' case as to the effects on each of them of the delay that occurred. The evidence in support of their claims as to the causes and length of delay is mainly to be found in the documents disclosed by the SSHD at a very late stage in the prolonged procedural history of this case.
- The claims themselves cannot be said to have no prospects of success, they should at the very least be tested in a consideration of whether permission should be granted. The particular objection to the claims for damages that can be determined at this stage was that a claim for damages may not stand alone in a judicial review claim, it may only be made as part of and ancillary to a claim for one of the judicial review remedies. The answer to that objection is that both Yusuf and Yakub have, albeit by amendment, on-going claims for judicial review. Moreover, all three claimants' original claims remain on the pleadings and have yet to be disposed of so that the amendment to claim damages is ancillary to existing claims even if those claims are no longer being pursued in their unamended form. Finally, the claim for damages is not made as an ancillary claim to a claim for judicial review relief but as a stand-alone claim for damages under the HRA which is being heard in the Administrative Court since it raises similar issues and evidence which must in any event be considered in the judicial review claims properly brought in this court.
- Finally, the objection that the claims are ones that are the subject of suitable alternative remedies is strongly contested and gives rise to difficult legal issues which are from the claimants' standpoint arguable and which it is in the public interest should be resolved in a considered judgment rather than a procedural ruling. For the same reason, if the claims should be stayed, that order should only be made in a considered judgment after full argument.
- Conclusion. It follows that permission to amend in the form set out in the amended grounds of review document should be granted and the detailed grounds of defence served pursuant to that document should stand as the SSHD's defence.
E. Issue 4 - Permission to Apply for Judicial Review, Adjournment and Stay of proceedings
4.1. Permission to apply for judicial review. Introduction.
- The SSHD opposes the grant of permission to apply for judicial review in respect of all the new claims sought to be added by way of amendment, that is claims for declarations in relation to the delay periods, claims to set aside the decisions dated 9 October and 13 November 2014 and claims for damages for breaches of article 8 of the ECHR. At the hearing on 19 December 2014, I directed that there should be a rolled-up hearing that would address the applications for permission as part of the decision-making process at the substantive hearing. Usually at a rolled-up hearing, the Administrative Court considers the substantive issues and makes a rolled-up decision in which it first decides how the substantive hearing would be decided if it took place and then, if it decides that judicial review should be refused, then decide whether permission should be granted and the substantive application dismissed or whether the case for a substantive review decision was so weak that permission should be refused.
- In this case, it is already clear that each proposed new head of claim has, to apply the judicial review test for permission, an arguable case. The test must be applied to each head of claim and each claimant separately. Given the findings of fact that I have already made, I can summarise why the test is passed for each claim for each claimant succinctly.
- Claims for declarations. Each claimant now has a decision but the decision in both Yusuf and Yakub's case is challenged and all three claimants are also claiming damages flowing from the delay in reaching those decisions. If these claims may be dealt with, it is clear that Yusuf and Yakub would be entitled to seek a declaration in addition to an order setting the relevant decision aside since the decision would have to be retaken and it would be necessary for the court to spell out the basis upon which that new decision should be made. That exercise could, and often should, be reflected in a declaration setting out what the legal basis for the new decision should be and/or what the errors of law were that led to the setting aside of the old decision.
- Each claimant is now claiming damages for the delays that have occurred which, it is alleged, to give rise to breaches of article 8 of the ECHR. In those circumstances, if the court finds that there were actionable breaches of article 8, it might well be helpful to declare what periods of delay gave rise to those breaches or had to be taken account of when making the necessary assessment of damages. These declarations would therefore be ancillary judicial review remedies if either decision was set aside. Furthermore, the declarations would form part of the permissible range of remedies available when awarding damages under the HRA. For these reasons, the claims are arguable.
- A further reason for permitting a claim for declarations to be argued is that the claimants are seeking just satisfaction, the remedy available for claims arising out of breaches of the HRA where no appropriate existing remedy is available. Such satisfaction may, in a suitable case, be achieved or partially achieved by an appropriately worded declaration.
- Yusuf and Yakub's decisions. Yusuf seeks to set aside the refusal of his application and Yakub the grant of only 30-months LTR following the success of his application that LTR should be granted. In both cases, the principal challenge to the decision is that potentially highly significant matters that should have been taken into account were ignored or not given any appropriate weight in the decision-making process. Furthermore, it is arguable that the relevant provisions of LASPO were not taken into account or were erroneously applied so that both Yusuf and Yakub's previous convictions were wrongly taken into account. For these reasons, and without considering other possible grounds of challenge, the claims are arguable.
- Claims for damages. It is clear from the findings of fact already made that the lengthy delays that occurred were caused not only to maladministration but by significant failures to show due respect to each claimant's right to both a family and a private life. The delays were arguably manifestly excessive and such as to cause each claimant particular detriment. In consequence, the guidance of the Court of Appeal in MD (China) v SSHD would arguably not be applicable.
- The SSHD relied on the provisions of CPR 54.3(2) which provides that a claim for judicial review may include a claim for damages, restitution or the recovery of a sum due but may not seek such a remedy alone. That provision is not, however, applicable to these claims for damages. Firstly, the claims are advanced as claims for breach of statutory duties and not as judicial review claims. Secondly, the claims are strictly speaking not claims for damages but for just satisfaction, the remedy prescribed as the appropriate remedy by the ECHR and the HRA where there have been contraventions of the ECHR which are not capable of being addressed by conventional claims for damages. Thirdly, the remedy is not being sought alone since there are two claims for judicial review of decisions of the SSHD and an outstanding claim for judicial review remedies – including a declaration – that has yet to be disposed of by order in the Yasin's case.
- Conclusion. Each of the new claims give rise to matters of general public interest and potentially affect other cases. For that reason and because each proposed new claim is highly arguable, permission to proceed to a full substantive review will be granted.
4.2. Adjournment of substantive hearing.
- The SSHD contended that it would be unfair and unjust for the hearing to take place so soon after the new claims had been advanced and permission granted or a rolled up hearing directed. In particular, it was contended that the claimants had not properly set out or particularised their claims, witnesses whose statements had been tendered should be made available for cross-examination, no evidence had been adduced to address the claim that substantial harm had been caused by the delays and there was insufficient time for the SSHD properly to prepare for the hearing and to meet and respond to the claimants' cases.
- However, these matters had not caused the SSHD any prejudice other than that which it had caused itself and was of its own making. The chronology and timetable for this claim shows that the SSHD withheld discovery relating to the nature, extent and causes of delay, all of which have been in issue since the original claim was first advanced, until a few days before the substantive hearing of this case. Furthermore, it is unusual for cross-examination to be permitted as part of the judicial review procedure even where damages are claimed for maladministration and breaches of the HRA. The SSHD had made no application for cross-examination and, as has been made clear in a number of cases, cross-examination of witnesses is not necessary when assessing damages for breaches of article 8 rights save in exceptional cases where the facts cannot otherwise be fairly determined. In this case, the facts can be ascertained from the disclosed documents and from the absence of documents and logs due to their non-existence or non-disclosure. Moreover, such cross-examination as might have been allowed would have been of SSHD witnesses but the SSHD only chose to adduce evidence from one witness whose involvement in the claimants' cases and in the units that had dealt with them was confined to a nine-day period in October 2014.
- It is also material that the SSHD has only adduced brief evidence from one witness and has not identified other witnesses that it would wish to track down or take statements and adduce evidence from. Furthermore, it has not sought to explain why the claimants' cases were not decided for well over ten years (i.e. in the period between 2003 and 2014) save in one paragraph listing possible generalised assertions unsupported by any back-up evidence from witnesses or documents. It is therefore clear that the SSHD has neither the wish nor the ability to obtain further evidence if an adjournment was granted.
- I also take account of a further significant disadvantage that the claimants suffer from in this case. Their case is unsupported by legal aid. They are all of modest means and their cases are complex and require, and have been given, considerable time and resources from experienced counsel and solicitors with specialist knowledge. Any further delay in bringing these cases to a conclusion could therefore cause them insuperable hardship.
- Conclusion. The claimants waited for over ten years to obtain decisions from the SSHD and two of those decisions are now challenged on substantial grounds. Furthermore, it has conducted this judicial review with scant regard to its procedural obligations. It would be unfair and unjust in the extreme to grant its adjournment request thereby causing further delays, particularly since it has not made out any ground for being granted further time to prepare its case.
- Procedure to be followed. The substantive hearing was confined to one day of submissions evenly divided between the parties' respective counsel supplemented by detailed pre and post-hearing written submissions. The hearing bundle contained all the disclosed documents and the hearing has included my submitting these documents to minute examination. I also directed that the hearing would be rolled-up and that the quantification of any damages that I awarded would be dealt after I had handed down judgment on all other issues.
- Since the parties' cases were dealt with in detail in the pre-hearing written submissions, any lack of particularisation of the claims, which if it arose at all arose as a result of the very late disclosure of documents by the SSHD, was made up for in the claimants' counsel's written submissions which I directed should stand as an additional pleading. The SSHD particularly complained about the lack of particularisation of the claimants' case relating to the loss and damage it is alleged was caused to them by the delays that occurred. This complaint was ill-founded since the pleadings were supplemented by detailed witness statements from each member of the Said family including Laila. These statements provided sufficient detail of causation, they were not statements requiring cross-examination and they will be capable of elaboration or rebuttal in any event since additional evidence will be allowed if there is a further hearing to address the quantification of damages which I have directed will be held-over until after the handing down of this judgment.
4.3. Stay of proceedings.
- The SSHD contended that if a substantive hearing was directed for the amended claims, the court should impose a stay on those new claims. The stay should be imposed on these claims for these reasons:
(1) The claims for declarations are academic or unnecessary since the SSHD has now decided the three applications for LTR.
(2) Yusuf has a suitable alternative remedy by way of an appeal to the FtT which he is currently exercising albeit that the hearing of the appeal has been adjourned to await this judgment.
(3) Yakub has a suitable alternative remedy by way of a reconsideration of his decision which the SSHD has stated will take place on two separate occasions.
(4) The claim for damages should be referred to the SSHD's Complaints procedure which covers all complaints of maladministration made against the SSHD.
- It is arguable that none of these suggested alternative remedies are suitable or sufficiently suitable to obviate the need for this judicial review. Furthermore, the granting of a stay in each of these claims should only occur, if it is to occur at all, after detailed argument on both fact and law if an appropriate remedy is being considered. In other words, the SSHD's contention that a stay should be imposed amount to a counterclaim put forward in opposition to these four claims which should be addressed at the substantive hearing. That contention should therefore be considered and decided at the same time as the claimants' claims.
F. Issue 5 – Whether Original Claims are Academic
- Introduction. There are two separate strands to the contention that the original claims are, or have become, academic. The first is a consideration as to whether a claimant will obtain something that will benefit him or be of practical utility for him if his claim succeeds. This consideration may arise at the outset when permission is being considered or it may arise prior at the substantive hearing if it is contended that the claimant's situation has changed in that he has since the claim was filed achieved or been granted what he is claiming or that his claim no longer has practical utility for him due to his changed circumstances. In such cases, the court has a discretion to refuse permission or to dismiss the claim. The second strand is that the claimant has, or has already used, a suitable alternative remedy. That strand is considered in these cases in issues 9 & 11.
- The court has a discretion which it can exercise to refuse to give effect to the principle in play by continuing with the claim in order to grant a declaration if there is some continuing practical advantage even if the primary relief claimed is no longer necessary or appropriate. The court may also exercise its discretion to continue with an academic claim if there is a public interest involved which it is considered should lead to a judgment for the benefit of the wider public.
- It is helpful to consider in this case a widespread practice of the SSHD in immigration cases. This practice is to serve a formal acknowledgement of service with a summary defence which merely states that the SSHD will reconsider a disputed decision or will take a delayed decision within a stipulated timescale, usually three months from the date of the order refusing permission, absent unforeseen circumstances which make that timescale impossible to achieve. This is a useful practice in most cases and it is encouraged by a costs regime authorised by the Court of Appeal whereby the claimant should be awarded his costs of preparing and serving the claim if the reconsideration or service of a decision provides what is sought in the claim absent conduct from the claimant which does not justify such an order. However, the SSHD on occasion abuses this practice by requiring the claimant to agree to the withdrawal of the claim with no order as to costs as a precondition of the reconsideration or delivery of a decision. When that occurs, a claimant is usually entitled to refuse the offer in an open letter which makes it clear that he would accept an order whereby he withdraws the claim on terms that the promised decision or reconsideration is provided within the stipulated timescale and his costs will be paid or referred to the court for determination.
- In this case, the SSHD made an open offer to provide decisions within six months in its acknowledgment of service dated 29 May 2013 but, nonetheless, the court granted the claimants permission to proceed to a full judicial review in a decision dated 23 July 2013, within that six months' timescale. This was because the SSHD had not offered to pay the claimants' costs and in the light of the enormous delay that had occurred and the pre-action inaction by the SSHD all of which pointed to the claimants having good prospects of success at the substantive hearing. Despite that permission, the SSHD failed to provide decisions within six months and, having made a further open statement in a letter dated 12 December 2013 that decisions would be provided within six months of that letter, again failed to provide them within that timescale. Decisions were finally provided on 9 October 2014 (albeit not served for a further two weeks) in Yasin and Yakub's cases and on 13 November 2014 in Yusuf's case.
- Discussion. Although the decisions are now available, the original claims have continuing utility for each claimant and they should not be dismissed without any further order, save for costs.
- Yasin's case. Yasin died about three months after the decision in his case was provided and that decision granted him all that he was seeking. However, the decision provided him with ILR from 9 October 2014 whereas his claim was that he no decision and was entitled to have received it by, at the latest, 20 December 2004. His Estate now seeks to claim, and he was claiming before his death, a declaration that he was entitled to have been provided with the decision by 20 December 2004 and damages arising out of the delay of 10 years in providing that decision.
- It is claimed that there is practical utility in his obtaining a declaration as to when his decision should have been provided and what part of that delay was unlawful This is because such a declaration would be an appropriate adjunct to his claim for damages and, in any event, it is claimed as just satisfaction – in addition to any damages – for the claimed breaches of article 8 of the ECHR arising from the unlawful delay in providing the decision. Yasin's costs of the original claims for the whole period of the judicial review up to the final order in relation to the original claim also remain for determination since the SSHD has not made an open unconditional offer that all such costs would be paid. Instead, the only open offer was made prior to the adjourned hearing that such costs would be paid up to the date of the decision and that Yasin should pay the SSHD's costs from that date to the date of the order. Yasin's costs claim may possibly also include a claim for indemnity rather than standard basis costs in the light of the SSHD's non-compliance with court orders and the delays that it has caused.
- Yusuf's case. It is claimed that there is practical utility in making a similar order in his case since he is claiming that the decision was unlawful, in part due to the delay that occurred in providing it. He is also claiming damages for breaches of article 8 of the ECHR arising from that unlawful delay and costs arising from the original claim.
- Yakub's case. It is claimed that there is also claimed to be practical utility in Yakub being granted a similar declaration for the same reasons as are advanced by Yasin and Yusuf.
- Conclusion. It follow that the claims for declarations by each claimant as to when each decision should have been provided and as to the nature of the unlawfulness that occurred in providing them are not academic and may be pursued. This is because the original claims for mandatory orders have not been dismissed and, although each decision has now been provided, each claimant is claiming declaratory relief as just satisfaction and as an adjunct to their respective claims for damages. They are also claiming their costs, possibly on an indemnity basis, arising from their pursuit of these original claims which, ultimately, have led to these decisions being provided without a mandatory order being necessary.
G. Issue 6 – Effect of LASPO
- This issue arises in relation to the decisions in both Yusuf and Yakub's cases albeit that it principally arises in Yusuf's case. In essence, the issue is whether the SSHD was entitled to take account of Yusuf's convictions that led to his receiving an eighteen-month prison sentence and his three earlier driving offences when considering and deciding his application for LTR even though those convictions were spent and similarly, whether it was entitled to take account of Yakub's seven offences and one community sentence enforcement order even though these, or most of them, were spent. This issue should have involved a simple application of a statutory transitional provision but it is in fact bewilderingly complex due to the need to consult poorly drafted legislation spanning interlocking statutory provisions in the Rehabilitation of Offenders Act 1974 ("ROA 1974"), the UK Borders Act 2007 ("UKBA 2007") and LASPO as well as paragraph 322(5) of the IRs.
6.2. Summary of legislation
- The relevant legislation is as follows:
Rehabilitation of Offenders Act 1974
Rehabilitated persons and spent convictions
1(1) … where an individual has been convicted, whether before or after the commencement of this Act, of any offence or offences, and the following conditions are satisfied, that is to say—
(a) he did not have imposed on him in respect of that conviction a sentence which is excluded from rehabilitation under this Act; …
then, after the end of the rehabilitation period so applicable … that individual shall for the purposes of this Act be treated as a rehabilitated person in respect of the … conviction and that conviction shall for those purposes be treated as spent.
4 Effect of rehabilitation
(1) … a person who has become a rehabilitated person for the purposes of this Act in respect of a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction; and, notwithstanding the provisions of any other enactment or rule of law to the contrary, but subject as aforesaid—
(a) no evidence shall be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Great Britain to prove that any such person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which was the subject of a spent conviction; and
(b) a person shall not, in any such proceedings, be asked, and, if asked, shall not be required to answer, any question relating to his past which cannot be answered without acknowledging or referring to a spent conviction or spent convictions or any circumstances ancillary thereto.
(2) Subject to the provisions of any order made under subsection (4) below, where a question seeking information with respect to a person's previous convictions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority—
(a) the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly; and
(b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction in his answer to the question.
(3) Subject to the provisions of any order made under subsection (4) below,—
(a) any obligation imposed on any person by any rule of law or by the provisions of any agreement or arrangement to disclose any matters to any other person shall not extend to requiring him to disclose a spent conviction or any circumstances ancillary to a spent conviction (whether the conviction is his own or another's) ; …
(5) For the purposes of this section … any of the following are circumstances ancillary to a conviction, that is to say—
(a) the offence or offences which were the subject of that conviction;
(b) the conduct constituting that offence or those offences;
(c) any process or proceedings preliminary to that conviction, any sentence imposed in respect of that conviction, any proceedings (whether by way of appeal or otherwise) for reviewing that conviction or any such sentence, and anything done in pursuance of or undergone in compliance with any such sentence.
5. Rehabilitation periods for particular offences
(1) The sentences excluded from rehabilitation under this Act are—
(b) a sentence of imprisonment or corrective training for a term exceeding [thirty] forty eight months ;
[...2) For the purposes of this Act—
[(a) the rehabilitation period applicable to a sentence specified in the first column of Table A below is the period specified in the second column of that Table in relation to that sentence, or, where the sentence was imposed on a person who was under seventeen years of age at the date of his conviction, half that period ; and
(b) the rehabilitation period applicable to a sentence specified in the first column of Table B below is the period specified in the second column of that Table in relation to that sentence;]
(2) For the purposes of this Act… the rehabilitation period for a sentence is the period—
(a) beginning with the date of the conviction in respect of which the sentence is imposed, and
(b) ending at the time listed in the following Table in relation to that sentence:
reckoned in either case from the date of the conviction in respect of which the sentence was imposed.
End of rehabilitation period for adult offenders
|[A sentence of imprisonment or corrective training for a term exceeding six months but not exceeding thirty months.]
A custodial sentence of more than 6 months and up to, or consisting of, 30 months
The end of the period of 48 months beginning with the day on which the sentence (including the licence period) is completed
9 Unauthorized disclosure of spent convictions
(1) In this section—
" official record " means a record kept for the purposes of its functions by any court, police force, Government department, local or other public authority in Great Britain, … and
" specified information " means information imputing that a named or otherwise identifiable rehabilitated living person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which is the subject of a spent conviction.
(2) Subject to the provisions of any order made under subsection (5) below, any person who, in the course of his official duties, has or at any time has had custody of or access to any official record or the information contained therein, shall be guilty of an offence if, knowing or having reasonable cause to suspect that any specified information he has obtained in the course of those duties is specified information, he discloses it, otherwise than in the course of those duties, to another person.
(5) The Secretary of State may by order make such provision as appears to him to be appropriate for excepting the disclosure of specified information derived from an official record from the provisions of subsection (2) above in such cases or classes of case as may be specified in the order.
LASPO and the amendments to UKBA made by LASPO
139 Establishment or alteration of rehabilitation periods
[The only relevant provisions are those set out above which amend the RoOA]
140 No rehabilitation for certain immigration or nationality purposes
Before section 57 of the UK Borders Act 2007 (and after the italic cross-heading before that section) insert—
"56A No rehabilitation for certain immigration or nationality purposes
(1) Section 4(1), (2) and (3) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) do not apply—
(a) in relation to any proceedings in respect of a relevant immigration decision … or
(b) otherwise for the purposes of, or in connection with, any such decision.
(2) In this section—
"immigration officer" means a person appointed by the Secretary of State as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971,
"relevant immigration decision" means any decision, or proposed decision, of the Secretary of State or an immigration officer under or by virtue of the Immigration Acts, or rules made under section 3 of the Immigration Act 1971 (immigration rules), in relation to the entitlement of a person to enter or remain in the United Kingdom (including, in particular, the removal of a person from the United Kingdom within the meaning of section 56A of the UK Borders Act 2007) which is made, before the commencement date."
141 Transitional and consequential provision
(1) Section 139 applies in relation to convictions … before the commencement date (as well as in relation to convictions … on or after that date).
(2) The [ROA] applies in relation to convictions … before the commencement date as if the amendments and repeals made by section 139 had always had effect.
(3) Where by virtue of subsection (2)—
(a) a person would, before the commencement date, have been treated for the purposes of the [ROA] as a rehabilitated person in respect of a conviction, or
(b) a conviction would, before that date, have been treated for the purposes of [the ROA] as spent,
the person or conviction concerned is (subject to any order made by virtue of section 4(4) or 7(4) of [the ROA] to be so treated on and after that date.
(5) (a) no person who, immediately before the commencement date—
(i) is treated as a rehabilitated person for the purposes of the [ROA] in respect of a conviction, …
(ii) .., and
(b) no conviction … which, immediately before the commencement date, is treated for the purposes of [ROA] as spent,
is to cease to be so treated merely because of section 139.
(7) Section 140 applies in relation to convictions before the commencement date (as well as in relation to convictions on or after that date).
(8) Section 140 applies as mentioned in subsection (7) above whether or not, immediately before the commencement date—
(a) the person concerned is treated as a rehabilitated person for the purposes of the [ROA] in respect of the conviction, or
(b) the conviction is treated for the purposes of [the ROA] as spent.
(9) But section 140 does not affect—
(a) any proceedings begun, but not completed, before the commencement date,
(b) any applications for immigration … decisions made, but not finally determined, before the commencement date, or
(c) the validity of any proceedings, or any relevant immigration … decision (within the meaning of section 56A of the UK Borders Act 2007) which is made, before the commencement date.
(10) Schedule 25 (consequential provision) has effect.
(11) Any reference in this section to section 139 is to be read as including a reference to Schedule 25.
(12) In this section "the commencement date" means such day as may be specified by order of the Secretary of State made by statutory instrument; and different days may be specified for different purposes.
[Schedule 25 sets out the amendments to the ROA made by LASPO the relevant ones being set out in the extracts from ROA set out above]
322 Grounds on which leave to remain … should normally be refused.
(5) The undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations … ;
6.3. Summary of legislative provisions
- These extracts from the ROA 1974, UKBA 2007 and LASPO show that since 1974, a person convicted and sentenced for offences that involved a relatively modest custodial sentence or a non-custodial sentence were to be rehabilitated after a period of time after the completion of their sentence. At that point, their conviction became spent so that from then on, no reference could be made to the fact of their conviction or to its circumstances save in limited situations in some cases. The purpose of rehabilitation was to facilitate a convicted person whose crime was not of the most serious to return to normal life so that, apart from the statutory exceptions, their crime and conviction were expunged from view or consideration. Initially, the maximum sentence that these provisions applied to was a custodial sentence of thirty months and the period before rehabilitation was ten years from conviction. However, experience suggested that this maximum severity of sentence was too short and the rehabilitation period was too long and the length of sentence was increased to forty eight months and the rehabilitation period reduced to forty-eight months from the date the sentence was completed. These changes to the ROA 1974 were introduced by LASPO.
- The effect of a sentence being spent and of a person being rehabilitated is set out in section 4 of the ROA 1974. In relation to applications for ILR by someone whose conviction has become spent, prior to the further changes introduced by LASPO, the application had to be considered and decided on the basis that that applicant had not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that spent conviction or convictions. Furthermore, one person was not entitled to pass onto another any details of the conviction or sentence so that the PNC could not provide details of it to an immigration officer and one immigration officer could not provide details of it to another immigration officer. It followed that, until 2012 when the ROA 1974 was amended by LASPO, an application for ILR or any other immigration application or consideration had to be addressed on the basis that the relevant conviction had not taken place.
- Until 2007, the only circumstances giving rise to a person being deported as a result of having been convicted or of their criminal tendencies and danger to the public was pursuant to the IA 1971 and a decision by the SSHD that their continued presence in the UK was not conducive to the public good. However, the law was transformed by amendments to the IRs in 2006, by the UKBA in 2007 and by LASPO in 2014. The effect of the UKBA 2007 was that ordinarily, a sentence of one year or more would invariably lead to deportation unless that would amount to a disproportionate interference with their private or family life. More recently, the statutory regime was amended so as to require that any consideration of an applicant's immigration status or application should take account of all their convictions whether or not these were spent or they had been rehabilitated. This significant inroad into the ROA 1974 was given effect to by the amendments to the then existing statutory regime that were introduced by LASPO as part of the group of amendments to the ROA 1974 relating to the length of qualifying sentences and of the rehabilitation periods for those sentences.
- This change, which required consideration of a spent conviction as part of an immigration application, gave rise to the need to consider what statutory transitional exception to the new regime should be provided for those whose convictions were spent or who had been rehabilitated before the LASPO changes were introduced. Broadly speaking, it was decided that a person whose conviction had been spent prior to LASPO taking effect could only be exempt from the removal of the effects of rehabilitation if a relevant immigration decision had been made or an application remaining for decision was outstanding prior to LASPO taking effect. Thus, any consideration of someone's immigration status after 1 October 2012 when LASPO took effect had to take account of that person's previous convictions. LASPO provided limited transitional exceptions to that change, the relevant ones in these cases being that the conviction had to have become spent before 1 October 2012 and the consideration had to be of an application for ILR or LTR made before 1 October 2012 that had not been decided by that date.
- Unfortunately, the transitional provisions distinguish between an application for ILR or LTR and a decision to deport. Only the former is subject to the transitional exemption. The complication in Yusuf's case is that he was subject both to a consideration of his application for ILR which is clearly caught by the transitional exemption and to a decision to deport him on the grounds of his criminality revealed by his convictions for GBH, affray and assault which is not. The issue, in short, is whether the requirement that all convictions even if spent must be taken into account when considering and deciding on deportation can trump the prohibition on their being taken into account when a an ILR application is being considered at the same time. Since it is mandatory to take Yusuf's spent convictions into account when considering whether he should be deported and also mandatory that they should not be taken into account when his ILR application is being considered, and since the legislation does not provide a clear answer to the question of how these two competing regimes should be applied when they are both applicable at the same time, the resolution of this issue is far from simple.
6.4. Factual background to SSHD's consideration of Yusuf's convictions
- Yusuf was sentenced on 20 August 2004 to a custodial sentence of eighteen months, he was released on 7 March 2005, his sentence was completed on 15 June 2006 and his conviction originally became spent on 15 August 2014 but, with effect from 1 October 2012, it became spent on 15 June 2010. The effect of section 141(2) of LASPO was that the date that Yusuf's convictions became spent is now to be treated as if it had always been 15 June 2010.
- From the outset, Yasin and Yusuf's separate applications dated 1 September 2004 were linked and considered together. The first written notification that the SSHD had of Yusuf's conviction and sentence was in Laila's family exercise application dated 10 March 2005 when she informed it that Yusuf had been charged with GBH. On 20 June 2006, the SSHD informed Yasin that his subsequent application under the family exercise that had included Yusuf as one of the members of the family was refused because of Yusuf's conviction. This decision must have been preceded by a PNC check which would have revealed the existence and details of this conviction. A second PNC check was made by the family exercise unit considering Yasin's application on 31 January 2007 and, on receipt of the PNC details, the family exercise application was again refused as a result of the knowledge that Yusuf had served an 18-month sentence. On 31 July 2007, the family exercise team carried out a third PNC check on Yusuf and then recorded on the GCID that his conviction was such that he did not meet the criteria for the family exercise but that his application would be reconsidered in the future under the amended criteria that had been introduced on 12 June 2006. The criteria being referred to appear to have related to the disqualification from the family exercise of applicants, in this case Yusuf, who had previous convictions. 18 March 2008, an official in the CRD which was the Directorate dealing with legacy cases which these applications had been wrongly referred to, reviewed Yusuf's file and concluded that he would probably qualify for LTR under IR 395C. That official, it is to be assumed, would have been aware of his criminal conviction given the 3 separate previous occasions when his PNC had been checked and copied onto the file and, in the light of that knowledge still considered that he would qualify for LTR.
- On 8 August 2010, following his arrest on suspicion of having committed a GBH offence, the SSHD undertook a further PNC check having reviewed his file and having observed that he had had a previous conviction for GBH. When Yusuf was released from Police custody without charge soon afterwards, no further action was taken with regard to his previous conviction.
- On 12 May 2012, a caseworker in the CAAU requested PNC checks on both Yusuf and Yakub and Yakub's PNC was sent to the CAAU on 20 September 2012. It is to be assumed that Yusuf's PNC was sent then or soon afterwards although this was not logged on the GCID. The CAAU obtained a further PNC printout for Yakub on 14 May 2013, it is to be inferred that it also obtained a further PNC for Yusuf although there is no documentary evidence of this in the hearing bundle.
- On 29 May 2013, the SSHD in the acknowledgement of service, stated that it would issue decisions in Yasin and Yusuf's cases by 29 October 2013. This statement amounted to a clear representation that Yusuf's application would be decided. On 14 October 2013, following the transfer of the applications from the CAAU to the OLCU, the OLCU reviewed Yakub, and it is to be inferred Yusuf's PNC results and concluded that consideration of Yakub's case and it is to be inferred also Yusuf's case should proceed. On 12 December 2013, the SSHD assured Laila's MP that all three cases would be decided within 6 months. On 9 January 2014, a note on Yasin's file which had been placed there by an official in the OLCU stated that the cases of all three Saids were JR cases and therefore had to be treated as a priority.
- The OLCU finally started on its consideration of all three cases in early May 2014 when it wrote to all three Saids requesting, for the fifth time, photographs and other standard details of each of them. On 20 May 2014, an OLCU caseworker was working on Yusuf's file and noticed that he had been convicted of GBH in August 2004. There is no evidence that that caseworker was aware of any of the history of the SSHD's consideration of his case. The GCID recorded that the caseworker had noted that Yusuf's case had not been considered by the CCD despite his 2004 conviction and sentence with the result that the OLCU decided to send his file to the CCD for it to check. The file was passed to the CCD intake team and an initial assessment was undertaken on 25 June 2014. This led to an Executive Officer within the intake team deciding to accept ownership of Yusuf's application and that his file should be sent to the CCD based in Liverpool. This decision had the effect of splitting into separate Directorates consideration of Yasin and Yusuf's linked applications with the result that Yasin's and Yakub's application remained in the OLCU for decision whilst Yusuf's application was transferred to the CCD for decision.
- Yusuf was arrested on 1 September 2014 for suspected involvement in an affray. The police discovered that he had a criminal conviction and that he was an overstayer with no LTR by undertaking a PNC and immigration search and, in accordance with standard practice in such cases, the police contacted Croydon CCD who contacted Liverpool CCD on discovering that Yusuf's application and file had already been transferred there. Officers within the Liverpool CCD arranged for Yusuf to be served with a Notice of Restriction on learning that he was not to be charged and was to be released from custody, and also arranged for him to be interviewed by an immigration officer prior to his release. The Appeals and Litigation Directorate, who were involved because Yusuf's judicial review substantive hearing was imminent, directed the CCD to deal with and decide Yusuf's application as soon as possible.
- The CCD therefore took steps to reach an early decision in relation to his application for LTR and as to whether any action should be taken in relation to his criminal conviction. On considering his application, a caseworker noted Yusuf's convictions and, on 16 September 2014, prepared a LASPO minute which merely recited the previous convictions and referred the minute to the CCD chief caseworker Mr Kenny Welsh. This was the only document that Mr Welsh was shown. On 23 September 2014, he read the minute and then noted briefly that the CCD should seek to deport. As a result, on 24 September 2014, a senior officer in the CCD referred Yusuf's file to a caseworker with the instruction that the CCD would decide Yusuf's application for LTR by refusing it using IR paragraph 322(5) and that Yusuf's deportation should be pursued. As a result, the first step towards deportation on conducive grounds was taken on 25 September 2014 when the CCD served Yusuf with a Notice of Intention to Deport. On 3 October 2014, an internal note stated that the CCD was looking at a foreign criminal whose offence had not been picked up by Criminal Casework but it has now come to the CCD's attention "via an application for ILR".
6.5. Discussion of the law in Yusuf's case
- The starting point in considering whether the SSHD correctly applied the provisions of ROA and LASPO to Yusuf's case is as follows:
(1) On 1 October 2012, Yusuf's application for LTR dated 1 September 2004 remained undecided and, on that date, the amendments to the ROA took effect. In consequence, Yusuf's conviction became spent (section 5(1)(b) and Table A of the ROA as amended by section 139 and schedule 25 of LASPO).
(2) The effect of Yusuf's conviction becoming spent was that his conviction was to be treated as having become spent on 15 June 2010, that that date was to be treated as having being the date on which it would become spent ever since he had been sentenced and that in consequence, his conviction was to be treated as having been spent on 1 October 2012 prior to the LASPO amendments took effect (section 141(2) of LASPO).
(3) But for the LASPO amendments, Yusuf's application for LTR was to be considered and dealt with on the basis that he had never been convicted or sentenced and the facts and surrounding circumstances of his convictions for which he was sentenced to 18 months imprisonment were to be treated as never having occurred. Moreover, it was unlawful for any decision relating to the determination of that application to take into account the convictions or for any request to be made by a caseworker working on the application to obtain details about or to take actions in consequence of these convictions (sections 4(1)(a), 4(5) and 9(2) of the ROA).
(4) Section 56A(1)(b) of the UKBA introduced by section 140 of LASPO provided that sections 4(1)(a) and 4(5) of the ROA were not to apply for the purposes of or in connection with the SSHD's proposed or final decision of Yusuf's application for LTR since it was an application for a decision that related to the entitlement of Yusuf to be in the United Kingdom (sections 51A((1)(b) and (2) of the UKBA introduced by section 140 of LASPO).
(5) Similarly, section 56A(1)(b) provided that sections 4(1)(a) and 4(5) were not to apply to any consideration by the SSHD as to whether Yusuf should be deported because his convictions were not conducive to his continued presence in the UK and because of his conduct including convictions, character or associations (sections 51A(1(b) and (2) of the UKBA introduced by section 140 of LASPO and paragraph 322(5) of the IRs).
- In the light of those considerations, the issue reduces to the following issue, namely what is the effect if any of section 141(9) on Yusuf's SET application. To understand that question, it is necessary to walk through a statutory line of mirrors. The starting point is that the ROA was amended by LASPO so as to reduce the rehabilitation period for sentences covered by that Act. Yusuf's convictions thereby became spent earlier. As a result, from 2010 onwards, sections 5(1) and 5(5) prohibited any reference to Yusuf's convictions in any consideration of or decision about his SET application. However, LAPSO disapplied the effect of sections 5(1) and 5(5) from immigration decisions so that spent convictions could be referred to in those limited circumstances. As a yet further gloss, however, section 141(9) provided that disapplication of sections 5(1) and 5(5) does not affect "any applications for immigration decisions made but not finally determined" on 1 October 2012.
- The effect of this convoluted series of statutory provisions appears to be that sections 5(1) and 5(5) are to continue to apply to Yusuf's application for LTR since his convictions were to be treated as spent. The even shorter and even harder issue then arises as to whether sections 5(1) and 5(5) are to continue to apply to the SSHD's consideration of deportation and, if not, how the convictions should be dealt with in the consideration of Yusuf's LTR application and the separate consideration of whether Yusuf should be deported given that the CCD was considering both questions simultaneously.
6.6. Parties' contentions
- On behalf of the claimants it was contended that the factual reality was that the SSHD was deciding Yusuf's application for LTR and that during that decision-making process it considered that his criminal convictions warranted his deportation. That decision formed part of its consideration of the LTR application and was subject to the same requirements as applied to that decision so that there should have been no consideration of his spent convictions and its entire decision dated 13 November 2014 was unlawful and should be set aside.
- On behalf of the SSHD it was contended that the deportation decision was a separate decision from the decision to refuse LTR so that section 141(9)(b) of LASPO was inapplicable to it. The decision to deport was not a decision taken in relation to an outstanding application but a stand-alone decision that had not been preceded by an application and so was one to which sections 5(1) and 5(5) of the ROA did not apply. Moreover, section 141(9)(b) was irrelevant because the convictions were irrelevant to the deportation decision and they played no part in it. The decision was taken because it was decided to serve a notice of intention to deport which was a decision that was taken after 1 October 2012 which was not an application for an immigration decision so that it fell outside the transitional provisions altogether.
6.7. SSHD's powers to deport on conducive grounds
- The SSHD's powers with regard to the deportation of those who have been convicted are derived from sections 3(5) and (6) of the IA 1971, sections 32 – 33 of the UKBA 2007 and paragraphs 322 and 398 - 399B of the IRs. These complex provisions have transformed the prospects of a foreign criminal remaining in the UK following a conviction or convictions resulting in custodial sentences. Such a criminal will be, or is very likely to be, deported save on human rights grounds or where their circumstances are very compelling. There is no time limit for initiating deportation and no restrictions on the power to deport are imposed in relation to a foreign criminal who has LTR at a time when deportation is being considered. It follows that even if the claimants' contentions are successful, it would be open to the SSHD to initiate deportation proceedings immediately after it had granted LTR in a transitional case albeit that there would be very strong or even compelling article 8 grounds for resisting an order where the conviction was of long standing and there were no other significant factors pointing to deportation.
- These powers of deportation suggest that the SSHD's contentions have some force since, on its contention, deportation powers are distinct from decision-making powers. However, there are strong competing considerations since the situation where there might be a conflict between a decision-making exercise following an application for LTR and a decision to initiate and enforce deportation on conducive grounds is unlikely to occur save in this rare and one-off situation were the transitional powers maintaining sections 5(1) and 5(5) of the ROA are to apply to an undecided application which had been made prior to 1 October 2012. Since it would always be possible for the SSHD to avoid the application of sections 5(1) and 5(5) in transitional cases by initiating a separate consideration of deportation, the transitional protection apparently provided by section 141(9)(b) of LASPO would be illusory if the SSHD's contentions are correct.
- In seeking to resolve this issue, therefore, I must examine with some care the factual circumstances surrounding the decision-making process or processes involved in Yusuf's case . There is no rule of law which precludes an application for LTR being decided by, and as part of, a decision-making process culminating in deportation. It is therefore possible that the consideration of spent convictions during a consideration of whether a foreign criminal should be deported is not permitted in the limited number of transitional cases where that consideration arises as part of the decision-making process to decide an outstanding application for LTR.
- There are very powerful arguments for concluding that the deportation decision in Yusuf's case was taken as an integral part of the decision-making process involved in deciding his SET application. From 2005 onwards, his criminal conviction was considered on at least seven occasions by the SSHD and on each occasion it appears to have been decided that although he had a significant criminal conviction for GBH, it should not be referred to the CCD for consideration for deportation – the CCD being the only Directorate that could order a foreign criminal to be deported. The SSHD then promised on two occasions on 29 May and 12 December 2013 that it would decide Yusuf's application for LTR within 6 months and the application was finally referred to the CCD for decision in May 2014. The CCD then decided the application as a matter of urgency having been asked to do so by the OLCU. It then informed itself that it was deciding his application by deciding to deport him and in its decision dated 11 November 2014 it refused Yusuf's application for ILR under paragraph 322(5) of the IRs due to his criminality arising out of his convictions which were spent.
- These factors taken together show that the SSHD did not engage in a separate consideration when considering deportation. The two were considered and decided together. In doing so, the SSHD inevitably made reference to the spent convictions when considering Yusuf's application and his defence to the use of the IRs to deport him was hampered because he could not defend himself by showing that removal was disproportionate and his circumstances for resisting deportation were compelling without revealing his spent conviction which he was entitled to keep out of the decision-making process since it was also concerned with his application for permission.
- There is another factor which supports Yusuf's case. His conviction was considered on many occasions and on each occasion, the decision-maker concerned was aware of his convictions and must have decided that they were not sufficient or appropriate to be referred to the CCD. The CCD's decision dated 13 November 2014, reached without reference to or consideration of the ten years decision-making that had preceded it, erroneously concluded that his convictions had only come to light when he was interviewed by the police during the evening of 31 August 2014 following his arrest on suspicion of being involved in an affray. In fact, the SSHD had been fully conscious of these convictions for over nine years prior to the decisions involved in the referral of Yusuf's case to the CCD and the CCD's deportation decision being taken and had apparently consciously decided on each of the many occasions that it had obtained details of them not to refer them to the CCD.
- Once the conviction had to be treated as spent, as occurred on 1 October 2012, the further consideration of Yusuf's application could not take account of his convictions. Notwithstanding this strict bar, a caseworker decided to refer Yusuf's application for LTR to the CCD, a decision that could not have been taken at all had the caseworker followed the legal prohibition imposed by section 5(5) of the ROA and had not taken account of his convictions.
- I conclude therefore, that the two considerations were undertaken as part of the SSHD's decision-making process needed to decide Yusuf's application and that the SSHD infringed the applicable requirements imposed by section 5(5) of the ROA in referring Yusuf's case to the CCD at all, particularly as it had decided on at least seven previous occasions not to refer it to that Directorate.
- The effect of that is that the SSHD should first have decided Yusuf's LTR application since that was the primary decision it had to take. In doing so, it was not entitled to take account of Yusuf's convictions. It would, in those circumstances inevitably have decided that he was entitled to ILR. It could then, as a separate exercise, if it believed that it was still appropriate to do so, decide whether to deport him or not since that decision would then have been a stand-alone decision. Inevitably, that decision would have had to have taken account of the fact that Yusuf had only just been granted ILR and that he was subject to a spent conviction that had been imposed ten years previously and that he had not been convicted of any crime since then. Alternatively, the SSHD could subsequently and on a separate occasion have initiated a consideration of whether Yusuf should be deported and, indeed, it still can do so and could do so once Yusuf's application decision has been retaken if the decision dated 13 November 2014 is set aside.
- However, what the SSHD could not do in this case was to decide the deportation issue first as part of its overall decision-making process in relation to Yusuf's application. That procedure infringed the prohibition imposed by section 5 of the ROA. It involved caseworkers making reference to those convictions as part of their decision-making process. That procedure also involved the unlawful reference of Yusuf's application to the CCD which only had jurisdiction to consider it if it had satisfied itself that Yusuf had qualifying convictions. However, in the light of the LASPO transitional provisions, neither the OLCU nor the CCD caseworkers were entitled to take these into account because the conviction was spent and these would have been taken into account for the prohibited purposes "... of or in connection with, any such [immigration] decision". Moreover, the decision to dismiss the application by reference to paragraph 322(5) of the IRs took account of the circumstances of his offending behaviour and subsequent convictions although they were spent and unavailable for consideration. Finally, the course of action adopted by the CCD deprived Yusuf of the ability to show that his deportation was disproportionate and that his circumstances were exceptional since, to rely on these arguments, he had to draw attention to his convictions even though he was entitled to have them left out of account since his application was being considered at the same time as his possible deportation.
- Yusuf's convictions dated 20 August 2004. It is clear that no-one within the SSHD who considered Yusuf's case was aware that his case was a transitional case that was covered by section 141(9) of LASPO. Moreover, no-one gave any thought as to how his application and any consideration of his spent convictions should be undertaken given the conflicting requirements relating on the one hand to the need to decide his LTR application without reference to his spent convictions and on the other hand to decide whether he should be deported because of them.
- Since Yusuf's convictions should not have been taken into account when his application was being considered, that application should have been decided separately from any consideration of his convictions and without reference to them. The SSHD wrongly decided at a late stage that the CCD should decide the application and that, as part of that decision-making process, would consider whether its decision should be to deport Yusuf as a result of his spent convictions.
- The SSHD did not, as it subsequently asserted, only refer to the CCD a consideration of possible deportation. It had initially decided to consider both Yasin's and Yusuf's applications together as linked applications and had maintained that decision consistently for over ten years. It had throughout that period repeatedly assured Yusuf that it would decide his application in due time and had then, during the judicial review, twice promised to decide the application within 6 months. It therefore no longer had the option of first deciding to deport him and then concluding that that deportation decision obviated the need to decide the LTR application save in a formal manner consequently to the deportation decision. What the OLCU did was to refer both Yusuf's original application and a consideration of whether he should be deported to the CCD with a request for it to undertake both matters simultaneously and as part of the same reference. His application should not have been transferred to the CCD at all since that Directorate was principally concerned with whether a foreign criminal should be deported on account of his criminal history. Thus, the OLCU's decision to refer his application to the CCD because of his convictions and the CCD's preliminary decision to accept that reference involved caseworkers in both Directorates processing his application in an unlawful and prohibited consideration of his spent convictions.
- If the SSHD had considered it necessary to refer Yusuf's spent convictions to the CCD, that Directorate should have embarked on a separate and distinct consideration of his spent convictions from the on-going consideration by the OLCU of his application for ILR that had to be carried out without reference to those convictions. If Yusuf's case had been referred to the CCD, it would have initially had to have considered whether to await the OLCU's application decision before considering whether he should be deported. It would then, after receipt of the OLCU's decision, have needed to decide whether Yusuf was liable to be deported and served with a Notice of Intention to Deport. Finally, if one was served, it would then have needed to decide in the light of all available evidence including Yusuf's response to the notice of intention to deport whether he should be deported. In reaching its decisions as to whether he was liable to be deported and, if so, whether he should be deported, the CCD would have had to take account of the OLCU's decision as to Yusuf's application and its reasons for reaching that decision.
- If and when the CCD embarked on a deportation decision-making exercise, it would have had to have considered Yusuf's convictions and criminality completely separately from OLCU's consideration of his outstanding LTR application. The CCD would have needed to have considered whether it was proportionate and permissible to deport someone in Yusuf's unusual circumstances whose relevant convictions were both spent and ten years' old and who had recently been granted ILR by the OLCU (or limited LTR or whose application had been refused) and whose convictions had been considered on innumerable occasions by SSHD caseworkers who had concluded on each occasion that his convictions should not be referred to the CCD. The CCD would also have had to have considered the entire history of each of Yusuf's immigration applications including those made on his behalf in 1999, 2002, 2004, 2003, 2005 and 2006. In the light of these considerations, it would then have had to have considered whether it was conducive to deport him. If so, it would then have had to decide in a separate decision whether to deport him, whether the IR exceptions to deportation were applicable, whether deportation would infringe his article 8 rights to a private and family life and whether his circumstances were compelling enough for him not to be deported.
- In short, Yusuf's application was subject to the transitional provisions of section 141(9) of LASPO and there should have been no reference to his convictions at any stage of the decision-making process involved in his SET application. That application should have been decided by the OLCU with and at the same time as Yasin's linked application. If the SSHD considered that the CCD should be consulted about Yusuf's convictions, that exercise should have been completely separate and ring-fenced from the OLCU's consideration of his ILR application and any CCD consideration should have awaited OLCU's decision and then taken it fully into account.
- Yusuf's driving convictions. Yusuf was convicted of three driving convictions in 2001 and 2003. These were all spent long before sections 139 – 141 of LASPO came into effect and, for the same reasons as precluded the convictions sentenced on 20 August 2004 being considered, these earlier spent convictions should not have been considered or referred to whilst his application was being considered by the CCD in September 2014 or decided in the decision dated 13 November 2014.
- Yakub's convictions. Yakub was convicted of two possession of drugs offences in 2007 for which he was fined and 3 possession of drugs, one battery and one criminal damage of property offences in 2010 – 2013 for each of which he was given a community order with unpaid work. His PNC print out also referred to an appearance before the magistrates on 20 January 2014 for failure to comply with a community order. That was not a separate conviction albeit that it was related to a previous conviction and involved the magistrates revisiting one of his previous sentences. Having revisited it, the magistrates imposed an enforcement order and extended the time within which he had to comply with the community order dated 11 June 2013 and also imposed a costs order.
- All but the last conviction dated 11 June 2013 was spent at the time when the SSHD was considering and deciding his application in October 2014 since the amended statutory provision in the ROA fixing the end of the rehabilitation period for fines and community orders was six months beginning with the date the sentence was imposed for a fine and six months from the date that the sentence was completed for an unpaid work sentence. But for the extension order, the last sentence would have been spent and the rehabilitation period would have ended on 11 December 2013. Since the order was extended on 20 January 2014, the rehabilitation period would have ended on the date to which the order was extended to. It is likely that that date had passed by 9 October 2014 when his application was decided. Thus, that conviction and sentence as varied by the subsequent failure to comply order should probably have been treated as being spent as well.
- What is clear is that all but the last conviction should not have been considered or referred to whilst his application was being considered and, probably, the last conviction and the subsequent failure to comply order should also not have been referred to.
H. Issue 7 - Approach to decision-making in SET applications
- This issue arises because the SET applications were dated 1 September 2004 and the decisions were taken on 9 October 2014 in relation to Yasin's and Yakub's applications and 13 November 2014 in relation to Yusuf's application. In the decade that passed between the applications and their decisions, the basis upon which these decisions had to be taken had changed considerably. The relevant changes that had to be taken account of were as follows:
(1) Both applications remained applications for settlement and ILR on the basis of Yasin being Laila's spouse, that Laila was both a British citizen and settled in the UK with no entitlement to reside in Kenya and that both he and she were present in the UK and living as husband and wife here.
(2) Yakub was the child dependant of both Yasin and Laila and he was resident in the UK and was seeking ILR and settlement.
(3) Since Yakub was a child aged seventeen when his dependency application was made, he was entitled to have his application considered as if he was still a child as a result of the SSHD's policy in force at that time and for some years thereafter. There was, however, no evidence as to whether that policy had been withdrawn when the three decisions were taken in October and November 2014
(4) Yusuf was the adult dependant of both Yasin and Laila and he was also seeking ILR and settlement. The SSHD decided from the outset that all three applications were linked and should be considered and decided together. That decision could however be varied or rescinded if the SSHD considered it desirable in the light of changed considerations and circumstances affecting all or any of the three applicants. It was only rescinded in October 2014 to enable Yasin's application to be decided by the OLCU and Yusuf's by the CCD albeit that that decision was erroneous and unlawful since the application should not have been transferred to the CCD.
(5) In reaching each decision in 2014, each decision-maker should have taken account of all the available evidence relating to each applicant that he was or should have been aware of. This evidence should have included the entire immigration history of each applicant, the reasons for the delay of ten years in reaching that decision and all evidence that was available on GCID, in the records of each Directorate and unit that had had ownership of that application, in each applicant's files or that had been submitted over the years by or on behalf of that applicant.
(6) The decision-maker should have taken account of and give effect to any change in the IRs or SSHD policy since the application was made unless the amendments or changes included transitional provisions which clearly stated that those amendments or changes were not applicable to the application being decided or any relevant matter affecting that decision. This was a difficult exercise to perform since some amendments and changed or more recently introduced policies were not applicable and others were.
(7) The decision-maker should also have considered whether the effect of each significant change over the ten-year period would, in the particular case being considered, have been to substantially alter or affect the decision in ways that were adverse to the applicant and have taken into account any more favourable decision that would have been made had that decision been made before those changes took effect.
(8) The principal and very significant IR amendments and changes that had been introduced in 2012 and 2014 and which had or potentially had a major influence on each decision were those introduced with effect from 9 July 2012. These amendments are contained in Paragraph 276ADE of and Appendix FM to the IRs which set out the criteria that a decision-maker should apply to any consideration of whether an applicant qualifies for LTR on the basis of their family or private life. Broadly speaking, these amendments imposed a detailed and structured decision-making process subject to stringent guidelines into any consideration of an applicant's family and private life that had to be followed save in certain exceptional and defined circumstances. These amendments were applicable to the three decisions that I am considering in this case notwithstanding that the relevant applications had been made eight years before these amendments had taken effect.
(9) A further significant group of amendments to the immigration regime had been introduced in stages since 2004 relating to the entitlement of foreign criminals to remain in the UK whether or not they had LTR, whether they should be removed or deported on account of their criminality and offending behaviour and how their immigration status should be dealt with procedurally in the light of that behaviour. Broadly speaking, the case of anyone who was not a British citizen who had committed all but the most minor of offences defined by the nature and length of the sentence passed ordinarily had to be referred to the CCD to determine whether they should be deported or removed from the UK. This enforcement regime had been introduced gradually since 2000 so that, by 2014, it provided for automatic deportation or removal for most offences committed by a foreign criminal where a custodial sentence has been passed and most criminality save in the most exceptional circumstances. Furthermore, subject to the transitional provisions in LASPO already considered, any consideration of an immigration application or of a foreign criminal's case by the SSHD whether generally or by the CCD should take account of all offending whenever it had occurred including spent convictions.
7.2. The family and private life transitional provisions
- When paragraph 276ADE and appendix FM were introduced, there was an exception to their applicability built into the amendments in any consideration of an application made before the amendments took effect. The terms of this exception were not clearly drafted so that it was unclear how extensive the scope of this transitional provision was. It was contended with force and justification by the Saids' counsel Ms Chandran in her oral and written submissions that the transitional provisions of these amendments had the effect that they did not apply to these decisions but the Court of Appeal, in a decision handed down since the last of counsel's post-hearing written submissions had been served, Singh v SSHD, makes it clear that the effect of the transitional provisions built into the IRs for these amendments is limited to a consideration of applications and to challenges to decisions in such applications under the IRs. In other words, unless the application was to be determined exclusively by reference to the IRs and its determination did not include a consideration of article 8 matters, the amendments were applicable to and had to be given effect to in the consideration of that application.
- It is therefore necessary to consider whether these applications were made under the IRs. This is not an easy question to determine. As has already been shown, the decision-maker in Yasin's and Yakub's application identified their respective applications as being, in Yasin's case an:
"outstanding application for leave outside the rules: 'dependent spouse (not paragraphs 277 - 289)'. Outstanding from 01/09/2004"
and in Yakub's case:
"an outstanding application (01/09/2004) – 'dependent children (not paragraphs 296 – 303)'".
These descriptions are interpolations of the actual application since both applications were, in terms, applications for settlement although this was not referred to in the interpolations, neither application contained the words and paragraphs in parenthesis in the decision-maker's interpolations and Yasin's application was applying for ILR and not LR and it made no reference to whether it was made within or outside the rules.
- The strictly accurate position is that the applications were settlement applications of a kind, in Yasin and Yakub's cases that were made under the IRs if that case fulfilled the qualifying provisions of, respectively, IR paragraph 287 (in Yasin's case) and IR paragraph 298 (in Yakub's case) and, otherwise, it was made by reference to the their rights under article 8. However, the SSHD had – and always had had - the power to vary, relax or amend a provision within the IRs in the discretion of the decision-maker in an exceptional case and, for reasons and in respects already discussed, the exceptional nature of these cases was such that I decided that there should have been a suitable relaxation of the provisions of the rules had the decisions been taken in 2004. It follows that, had those relaxations occurred, the resulting decisions would have been taken under the IRs without involving a consideration of their human rights. It must also follow that, ten years later, the case for relaxing the rules is very much stronger and as a first step in the decision-making process, such a relaxation should have been considered by the decision-maker in Yasin's and Yakub's cases. If such a relaxation was decided to be appropriate, the decisions would then have been taken under the IRs and they would not have involved at that stage recourse to article 8 and should have been taken without involving the provisions of paragraph 276ADE or appendix FM. Only if the decision had been that the provisions of paragraphs 277 and/or 298 should not be relaxed or, if relaxed, that ILR would not be granted would and should there have been recourse to article 8 or the provisions of paragraph 276ADE and appendix FM.
7.3. Decision-making process
- I have already decided that the decisions in both Yusuf's and Yakub's applications should not have taken account of any of their convictions which were spent at the date of those decisions. Yakub's case gives rise to two further difficulties. Firstly, his case had to be considered as if he was still a child although he was nearly twenty-eight by the time the decision was made. Secondly, his application was originally made on the basis that he was a dependent child but his dependency had ceased and is very different now that he is an adult from his child dependency at the time when the application was made. Thirdly, he now has a partner and they have two children and both his partner and their children's interests need to be considered. These considerations are not ones that ordinarily arise when a dependent child is being considered.
- The answer to this conundrum is relatively straightforward on the facts of this case even though the decision should have been taken ten years before it was taken. I have already pointed out that the first question to be resolved was whether IR paragraph 298 should have been relaxed in his case since, if it was not, the application could not have been made under the IRs at all. Thus, since Yakub ceased to be a child in 2005, it would be necessary to relax the requirement of dependency in addition to the requirement that has to be relaxed relating to his immigration status when the application was made since a twenty-eight year old adult is not ordinarily dependent on his parents. However, Yakub appeared exceptionally to have remained dependent on his parents in a factual sense until Yasin died in January 2015 and, and since January 2015, on Laila. The decision-maker could therefore proceed under the IRs having relaxed the qualifying requirement and also the dependency requirement unless he considered that Yakub was no longer dependent on his parents. If the application was considered under the relaxed IR requirements, it would not have been necessary to consider the interests of Yasin's children or the relationship that he has with his partner in this somewhat artificial consideration of his SET(M) dependency application under the IRs. If, however, that IR consideration led to an adverse decision that refused to consider that Yakub remained dependent on his parents or refused him ILR, his case would then have had to have been considered under article 8 when his relationship with his partner and children and their interests and his family and private life would have had to have been taken fully into account.
- The overall conclusion is that the decisions should have been taken in this way:
(1) All Yusuf's convictions and all but the one most recent of Yakub's convictions should have been left out of account.
(2) Consideration of Yusuf's application should not have been referred to the CCD. It was open to the SSHD to arrange for the CCD to consider Yusuf's convictions but that should have been a separate exercise if it occurred, the convictions and the referral should not have been brought to the attention of the OLCU decision-maker deciding his application and any consideration of his convictions by the CCD should have been postponed until after the decision by the OLCU and the terms of the OLCU decision should have been taken into account by the CCD in any such subsequent consideration of his convictions.
(3) The three application decisions should have been taken at the same time but separately. The decisions should have been taken sequentially, first Yasin's decision, then Yakub's decision since it formed part of Yasin's application and finally Yusuf's decision.
(4) In Yasin and Yakub's cases, the consideration should have been structured in this way. Firstly the decision-maker should have decided whether the application was made under the IRs and, if it was not, whether the relevant provision of the IRs should be relaxed so as to bring the application within the IRs. Then their cases should be considered under paragraph 276CDE and appendix FM and under a structured and sequential set of decisions as required by those provisions, then as to whether there were exceptional circumstances and, if so, what effect those should have on the decision and finally, it ILR was not to be granted, to consider and finally decide each application under article 8 outside the IRs.
(5) The decision-maker should also have taken account of the fact that he was deciding applications that had been made more than a decade previously and by reference to a structured article 8 decision-making process which was only introduced nearly eight years after the applications had been made and which required much greater rigour and far more detail than the SET applications that had been made in 2004. In those circumstances, fairness required the decision-maker to draw to the attention of each applicant that he was minded to apply the provisions of paragraph 276ADE and appendix FM and to consider the various other matters including whether his case involved exceptional circumstances and whether he had lost all connection with Kenya and to invite each applicant to supplement their original applications with up to date details of their private and family lives, of their children and partners and of any other relevant matter. The decisions should only have been taken after and in the light of receipt from each applicant of answers to that specific set of queries.
(6) Each decision should have been taken by reference to paragraph 359 above.
- It follows that, in deciding the cases in this way, the decision-maker should made appropriate reference to and consideration of the entire history of the applications and of the family and private life each has led over the decade that the applications were outstanding.
I. Issue 8 - Order in Yasin's unamended judicial review claim
- Yasin's decision granting him ILR did not contain the reasons for that grant. This was normal practice where ILR is granted but, given the lengthy and troubled history of his application, the decision-maker should have provided his reasons for the grant of ILR. The reasons are now available since the decision-maker's comprehensive file note of his decisions in both Yasin's and Yakub's cases has been disclosed. This shows that the decision in his case was more of a close run than might have been thought given that it granted Yasin ILR.
- It is clear that the decision-maker based his decision, in part, on an erroneous factual basis. Thus, he concluded that Yasin had never had valid LTR in the UK whereas he had arrived with a visitor's visa and had applied for asylum during the currency of that visit and only became appeal rights exhausted on 22 October 2002. Yasin therefore had LTR for the entire period between 18 September 1999 and 22 October 2002. The decision-maker considered that it was unclear whether Yasin had any remaining family in Kenya but the totality of all four Saids' evidence had clearly stated that none of them had any surviving family there. More significantly, he did not consider whether the application should be considered under the IRs having first relaxed them to accommodate Yasin's exceptional situation. In consequence, he was only able to grant Yasin thirty months LTR for the interference with his private life as a result of the insurmountable obstacle of him returning to Kenya given that Laila was a settled British citizen but was able to enlarge this to a grant of ILR on account of SSHD inaction, the destitution of the family during their wait for decisions and Laila's British citizenship.
- It made no difference to the overall decision so far as ILR was concerned that the reasoning appeared to downplay considerably the way that Yasin's private and family life had been interfered with during his 10-year wait for a decision. However, his Estate still have an outstanding claim for damages arising from the breaches of his article 8 rights occasioned by the SSHD's maladministration of his application. In those circumstances, and given the shortcomings in the reasoning of the decision disclosed in the file note of the decision-maker, and also given the history of the application and of the decision-making process set out above, it is clear that Yasin was entitled to bring his claim for judicial review, that it was solely because he brought that claim that he obtained a decision of his application and that it is appropriate to grant him relief by way of just satisfaction even though the decision was finally served not long before the substantive hearing. The appropriate relief is by way of a declaration, which is also appropriate to facilitate the consideration of his outstanding claim for damages.
- The declaration should state that the decision should have been made on or before 20 December 2004 and that the entire period of delay since that date until 9 October 2014 was unlawful. Although this judgment is not concerned with costs, it follows from a declaration in these terms that the Estate is entitled to the entire costs of his judicial review which will have to be assessed if not agreed. The basis of that assessment, namely as to whether the assessment should be on a standard or an indemnity basis, remains for decision.
J. Issue 9 – Possible suitable alternative remedy – a reconsideration of Yakub's decision
9.1. The issue
- This issue arises because the SSHD instructed its solicitor to put forward this proposal which was communicated to Yakub's solicitors in a letter dated 9 December 2014:
"Whilst my client maintains the lawfulness of the decision to grant discretionary leave to remain for 30 months, your client has now put forward evidence which was not before my client at the time of the decision dated 9 October 2014. Your client cannot rely on this evidence in seeking to challenge the decision dated 9 October 2014. To that end my client will agree to consider the further evidence put forward."
- The SSHD's offer did not make it clear what was being proposed. In particular it was not clear whether the proposal related to the consideration of an application to vary an existing permission, a reconsideration or review of the decision or the withdrawal of the decision followed by its being retaken. Although the SSHD has extensive discretionary powers with regard to the acceptance of applications for, the decision-making concerned with and the granting and variation of LTR, these powers must be exercised in accordance with the immigration statutory regime comprising statutes and statutory instruments, IRs and policy statements. Once an application has been concluded by a decision, that decision can only be varied or withdrawn in accordance with the terms of that regime and, ordinarily, the SSHD cannot unilaterally withdraw a decision to grant LTR save in pursuance of powers set out in the IRs and fleshed out in policy statements. It may additionally review or vary the terms of the LTR that has been granted and it can also issue a fresh grant of LTR pursuant to a further application. The SSHD's offer did not identify which of these powers that it was proposing to exercise or the relevant IR which would be applied.
- In the light of that general summary, the most obvious interpretation of this offer is that the SSHD was offering to treat the further evidence as an application for a limited administrative review of its decision to limit the grant of LTR to thirty months. That review would be conducted by considering whether the further evidence that the SSHD had referred to would, had it been considered, have given rise to a more extensive grant of LTR and, if it would have had that result, the SSHD would vary its grant accordingly. In short, the SSHD was offering to conduct an administrative review of the decision of a very limited kind. The offer did not include a firm commitment by the SSHD to withdraw the decision, or even that part of the decision that was concerned with the length of LTR, and then to consider Yakub's original application afresh in a way that took account of all relevant evidence and was made on a correct legal basis.
- Moreover, the offer was limited to a consideration of the further evidence that had allegedly only been provided after the decision had been taken. This appears to have been a reference to Yakub's witness statement dated 25 November 2014. However, the witness statement contained no evidence of any significance that had not previously been provided to the SSHD long before it had taken the decision. All the witness statement did was to collect Yakub's evidence that previously been provided piecemeal in various documents and set it out in a single structured statement.
- Furthermore, the offer gave no indication what evidence, documents and submissions would be taken into account in the proposed review. The original decision had been taken without taking account of much of Yakub's immigration history and many of the documents and logs brought into being during that history. Moreover, weight had been given to his spent convictions when they should not have been considered at all. Thus, unless the reconsideration was to be undertaken on a very different basis to the basis that had been used in reaching the original decision, it would have been a highly flawed decision-making process.
9.3. Further offer
- Following the hearing, I wrote to the parties asking for submissions as to whether Yakub's convictions were spent and therefore should not have been known about or considered by the decision-maker. The SSHD's counsel in his submissions answering this query stated that it was accepted that the SSHD erred in taking into account spent convictions. This amounts to a concession that the spent convictions should not have been known about or considered by the decision-maker when taking the decision. The submissions then stated that the SSHD would set aside the decision and retake it. This offer was to that made originally although its scope appears to be more extensive. However, it suffers from the same deficiencies that I have already identified.
- However, the court has not since been notified that the decision has been set aside. Furthermore, there is no indication of the basis upon which the fresh decision would be taken save that the decision-maker would not take account of Yakub's spent convictions or whether further submissions and evidence may be put forward by Yakub before it is retaken. It is also highly doubtful that I should take account of a concession that the SSHD's decision as to the length of the grant of LTR should be withdrawn that was only first intimated in counsel's post-hearing submissions made at my request to address an issue that had not been raised previously.
- The proposed reconsideration of the decision is not a suitable alternative remedy since it does not involve the setting aside of the original decision or a fresh and lawful consideration of Yakub's decision. Moreover, the limits of the proposed reconsideration are not made clear and appear to be very narrow in their scope. Finally, neither proposal identifies the IR or policy that authorises the proposed reconsideration. It follows that neither proposal provides a reason for dismissing or staying Yakub's claim that his decision should be judicially reviewed and set aside.
K. Issue 10 – Yakub's Decision – setting aside and declaration
10.1. The issue
- The SSHD has now conceded through its counsel's post-hearing written submissions dated 26 January 2015 that the SSHD's decision dated 9 October 2014 should be set aside. However, it has not formally admitted what the extent of the reconsideration would be, whether it would involve starting the decision-making process of Yakub's application dated 1 September 2004 afresh and whether Yakub might submit further evidence and submissions before the reconsideration process is undertaken. Moreover, no steps have yet been taken to undertaken this reconsideration.
- Yakub continues to challenge the decision as to the length of the LTR that he has been granted. He contends that the decision was unlawful and fundamentally flawed on a number of inter-related grounds. He claims that the part of the decision granting him 30-months LTR should be set aside and retaken and that he should also be granted a declaration that the original decision to grant him 30-months LTR was unlawful. The declaration should recite that the decision should be reconsidered in its entirety in a lawful manner which does not dismiss the original application but which reconsiders the length of his LTR. It should also recite that the original decision was unlawfully delayed for ten years and that it should not take account of any of his convictions that were spent at the date of the reconsideration. He therefore does not seek to disturb the finding that he is entitled to LTR, his objective is to obtain a fresh decision granting him ILR instead of the 30-months LTR that he was granted.
- It follows that I must first consider whether the decision should be set aside on judicial review grounds at all and, if so, whether the whole decision or only that part granting limited LTR should be set aside. If I decide that a judicial review remedy is appropriate, I should also consider whether a declaration should be granted and if so on what terms.
10.2. The decision dated 9 October 2014
- The decision stated that Yakub had originally submitted an application as "a dependent child (not paragraphs 296 – 303)" but that he did not qualify for leave within the rules. No reasons were given to explain why he did not qualify in that way. The decision then considered whether Yakub qualified for LTR on the basis of his family and private life, whether there were any exceptional circumstances that might qualify for a grant of leave and whether his removal from the UK would breach his rights under article 8 of the ECHR. The decision-maker took account of his offending in deciding he did not meet the requirements to be met for LTR as a partner and refused his application under the various relevant provisions of the IRs concerned with the grant of LTR as a partner, a parent or on account of his private life and also on the grounds that his circumstances were not exceptional, However, the decision-maker Mr Wiggins decided to grant him 30 months LTR outside the IRs due to the length of time he had spent in the UK and the SSHD's failure to consider his application in a timely manner.
10.3. Setting aside the decision
- Spent convictions. The decision is flawed at each stage of the decision. As has already been found, the decision was taken in a great hurry and the principal reason that it differed from Yasin's decision and only granted Yakub thirty months discretionary LTR rather than discretionary ILR was because of his offending behaviour. Much of the history of the application and many of the examples of maladministration identified in this judgment were not considered. Furthermore, as the SSHD now accepts, Yakub's spent convictions should not have been taken into account. It is noteworthy that, when the decision is reconsidered, he will have no unspent convictions and that in October 2014, he had only one minor unspent conviction which was either in fact spent on was on the point of becoming spent. The decision-making process was also flawed in the following respects.
- Leave within the rules. The decision wrongly asserted that the application was submitted as 'dependent children (not paragraphs 296 – 303)'. This was an error since the application was submitted on an SET(M) application form and was made on the basis that Yakub was a dependent child of his applicant father and his mother who was a settled British citizen. As has been seen, this application was primarily under IR paragraph 298 albeit subject to the need of the decision-maker to consider waiving the requirement that Yakub had to have limited LTR at the time of the application. The decision-maker did not give any thought to whether he should exercise his discretion to consider the application under the IRs. Instead, he merely asserted that Yakub did not qualify for leave within the rules.
- Leave as a partner. The application was not considered on the basis of his relationship with Nassim even though she had been his partner for over five years and they have two young children. This was because, so it was asserted, Yakub had not submitted an application on that basis. However, until evidence of the relationship and of the two children had been submitted and, in any event, the application that was being considered was full and sufficient – albeit by the standards of 2004 – and no further application was sought or expected. In contrast to this somewhat churlish reasoning, it is to be noted that the SSHD decision-maker in March 2003 volunteered to Laila that she should consider applying for registration as a British citizen and, without that helpful but correct intervention, it may have been some years before Laila appreciated that she had become a beneficiary of the change in the law. In relation to the assertion that there was no information about Nassim, the decision-maker was incorrect and, in any case, the decision-maker could and should have sought but did not seek any additional information that was needed about Nassim before the decision was finalised. That relationship was clearly a volatile one and unusual and, to the conventionally-minded, dysfunctional albeit that it had settled down by the date of the decision. However, the evidence suggests that it had been strained as a result of Yakub's precarious immigration status over many years and the consequent and on-going stresses and uncertainties that that caused. Moreover, it now appears to be a strong one and there is clearly close and loving contact between Yakub's two sons and his father, paternal grandmother, uncle and cousins.
- A further erroneous comment was to the effect that the SSHD had no information about Yakub's partner ("ex or current") or son as was made in support of the finding that Yakub did not qualify for leave because he did not satisfy the test of eligibility. In fact, Yakub has two children, the decision-maker had information about Nassim and their two children and, in any event, he could and should have sought further information due to the ten-year delay between the application being submitted and the decision being taken.
- Leave as a parent. The decision-maker made similar findings and assertions about the alleged lack of a valid application for leave to remain as a parent and the absence of information on file relating to Yakub's son (sic) and his relationship with him (sic). These findings were similarly unjustified and erroneous as those relating to Yakub's partner and the mythical ex-partner who was also referred to.
- Criminality and previous convictions. The decision asserted that Yakub did not meet the test of eligibility and suitability under S-LTRP due to his offending and that that offending "compromises your suitability". It is clear from these comments and from the content of emails sent by the decision-maker to the LO file-holder and further comments to be found in his file note that the principal, if not only, reason for not treating Yakub in a similar way to Yasin and granting him ILR was as a result of his convictions which it was considered had rendered him unsuitable for ILR. Only one of these convictions should have been considered and that is also now spent. Moreover, without belittling the seriousness of four cannabis and one cocaine possession convictions and a battery and a criminal damage convictions, three of these resulted in two small fines and three in low level community-based orders and all but the last conviction were spent. The finding that Yakub was unsuitable for ILR on the basis of those facts was not a reasoned decision and was unsupported by a risk assessment, probation reports, pre-sentence reports or any other information about the convictions and their factual circumstances was unlawful since it was supported by the unlawful consideration of spent convictions and was also unsupported by appropriate evidence and was therefore unjustified since it had been taken without considering material that should have been considered. Yakub should at the very least have been asked for information about these convictions and permitted to make representations about them before they were taken into account.
- Time in the UK. The decision-maker found that Yakub's length of residence in the UK was sufficient for him to be granted discretionary LTR for thirty months. If, as found, his fifteen years residence was sufficient to allow him thirty months LTR, it was apparently illogical not to grant ILR without any reasons being given for reducing the grant from ILR to thirty months LTR. This was particularly so since the decision accepted that had the application been considered by 2007, his life would probably have taken a different and non-criminal path. The decision also appeared to accept Yakub's evidence that he would have had no family members to return to had he left the UK to return to live in Kenya.
- Other reasons. The decision-maker listed nine further reasons why Yasin should be granted discretionary ILR even though his application was refused on human rights grounds. Although none of them were applied to Yakub, each of them was equally applicable to him. Furthermore, the decision-maker justified his grant of ILR to Yasin by reference to "the mishandling by the SSHD" with the consequence that Yasin's application "has been outstanding for 10 years". These deficiencies were equally applicable to Yakub although the decision-maker's words were wholly inadequate to describe the SSHD's catalogue of maladministration, errors of judgment, administrative shortcomings, high-handedness, indifference and lack of feeling over a twelve-year period between May 2003 and January 2015.
- Exceptional circumstances. There was no consideration of what would appear to be the highly exceptional circumstances of this case or of a general article 8 claim. In particular, the decision-maker did not consider, take account of or apply this guidance in the IDIs:
"Exceptional" does not mean "unusual" or "unique". Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin. Instead, "exceptional" means circumstances in which refusal would result Appendix FM 1.0 Family Life (as a Partner or Parent) and Private Life: 10-Year Routes April 2015 47 in unjustifiably harsh consequences for the individual or their family such that refusal of the application would not be proportionate under Article 8. If the family could all go to the country of return together but they choose to separate, this will not in itself constitute exceptional circumstances. However, the decision maker should not usually make a decision that forces a family to split if there is no criminality to add weight to the public interest in removal. Cases that raise exceptional circumstances that warrant a grant of leave outside the rules are likely to be rare. Where considering whether there are exceptional circumstances, the decision maker should consider all the circumstances relating to the applicant and their family members which have been raised, including as regards wider family members beyond their partner and child (or parent where the applicant is a child). In determining whether there are exceptional circumstances, the decision-maker must consider all relevant factors raised by the applicant and weigh them against the public interest under Article 8."
This guidance was applicable to the structured decision-making process since Yakub was, or potentially met the suitability and eligibility requirements for LTR under the ten-year route and was seeking ILR rather than the normal grant of thirty months because the SSHD had unlawfully delayed reaching a decision in his case for ten years. Since he had not obtained ILR, he was entitled to a consideration of exceptionality or, if that failed, to a historically or pre-2012 conventional article 8 consideration of his application. That consideration would and should have taken account of such private and family life as he had built up since his arrival in the UK notwithstanding its development between 2002 and 2014 whilst he was an overstayer without LTR.
- Overall, the decision should have been reached in a way that led to consistency between it and the decision in Yasin's case. No other reason was given save one based on the unjustified reliance on Yakub's spent convictions when it was not entitled to rely on spent convictions and only one of the convictions relied on – being a minor conviction - was possibly not spent. In those circumstances, both Yasin and Yakub appeared to be entitled to equality of treatment and both therefore to a grant of ILR.
- Conclusion. The decision is flawed to such an extent that it should be set aside in its entirety and a fresh decision taken on the application. The SSHD should retake the decision promptly but should first receive such further submissions as Yakub wishes to make through his solicitors. Such submissions should be served on the Treasury Solicitor. That decision should not attempt to revisit the granting of LTR but should address, on correct legal principles whether the end result should be ILR or LTR and, if LTR, whether the length should be thirty months or some other longer period.
10.4. Declaration and other remedy
- In addition to any claim for damages, Yakub is entitled to (1) an order setting aside the decision dated 9 October 2014, (2) an order requiring a fresh decision to be taken and served within five weeks of the handing down of this judgment and (3) a suitable declaration which states that the decision should have been served on Yakub on or before 20 December 2004, that the fresh decision should be served within five weeks of the handing down of judgment and that the decision should be taken in accordance with the law as set out in this judgment.
L. Issue 11 – Possible alternative remedy – Yusuf's FtT appeal
- Introduction. This issue arises because the SSHD contends that Yusuf's appeal against the decision dated 13 November 2014 provides a suitable alternative remedy and he should therefore be required to pursue that remedy. It is well-known that for an alternative remedy to be suitable and therefore able to preclude a judicial review of a public body's decision or decision-making process, the remedy should provide substantially the same or better remedies. Even if that is so, the Administrative Court has a residual discretion to allow a decision of a public body to be judicially reviewed.
- Yusuf lodged an in-time appeal to the FtT against the decision dated 13 November 2014. The proposed appeal has been significantly affected by the coming into force on 20 October 2014 of section 15 of section 115 of the IA 2014. This section in summary makes three significant changes to Yusuf's available appeal against the decision of 13 November 2014. In addition to these changes, which further truncate his entitlement to appeal that decision, he was already subject to an inability to appeal the part of the decision that decided to dismiss his application dated 1 October 2004.
- As a result, therefore, of the existing restrictions on appeals from the SSHD as added to by the further restrictions imposed by the IA 2014, Yusuf only has a right of appeal to the FtT of the decision dated 13 November 2014 in relation to that part of the decision in which "The Secretary of State has decided to refuse a human rights claim made by [Yusuf]" and his only grounds of appeal are such that "removal of [Yusuf] from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention".
- The practical effect of these provisions is that Yusuf no longer may no longer appeal any part of the decision on the grounds that it is not in accordance with the law and may not appeal the decision to dismiss his settlement application at all since it was not and never has been an immigration decision listed in section 82 of the NIAA.
- Submissions. Yusuf's counsel contended that the available remedies in the FtT only allowed him to challenge his proposed deportation on the grounds that it would be disproportionate to deport him or that his deportation would infringe the HRA in some other way. This was accepted by the SSHD's counsel as being a fair summary of the relevant statutory restrictions to Yusuf's FtT appeal but he also contended that Yusuf's proposed appeal was solely based on the alleged disproportionality of his proposed deportation so that his entire proposed appeal could still be advanced.
- Matters no longer capable of being appealed. Yusuf's counsel contended that Yusuf's potential challenge to the deportation decision was severely restricted before the IA 2014 restrictions were introduced since he would have been unable to appeal against the decision to dismiss his settlement application. Since the further IA restrictions had been introduced, he had lost the right to challenge any part of the decision on the grounds that it is not in accordance with the law. Thus, his appeal could only be brought against the deportation decision on the sole ground that it was disproportionate and in consequence an infringement of his article 8 rights.
- I accept the submissions that were advanced by Yusuf's counsel. I will list some of the more significant issues that cannot be raised on his behalf in the proposed appeal which it are both arguable and raised by his challenge to the decision dated 13 November 2014:
(1) The true meaning and effect of the relevant LASPO provisions as applied to his application. Indeed, the CCD's failure to consider or apply the LASPO transitional provisions could not be raised in the FtT since it is no longer possible to raise as a ground of appeal that an immigration decision was not in accordance with the law.
(2) Whether the decision that Yusuf's deportation was conducive to the public good was in accordance with the law given that the conviction on which that decision was based was imposed and the sentence that was passed was completed before the relevant provisions of the UKBA took effect on 1 August 2008.
(3) Whether the decision was not in accordance with the law because it combined a deportation decision with a decision of Yusuf's settlement application.
(4) What the effect and consequences were of the SSHD being made aware of Yusuf's PNC entry and previous convictions on at least seven occasions between 2005 and 2013 without thereafter seeking to deport Yusuf or referring him for consideration by the CCD and of its failure to honour two assurances that it would decide the settlement application within 6 months.
(5) Whether the SSHD's delays in reaching decisions on the settlement application affected the lawfulness of the decision that Yusuf's continued presence in the UK was not conducive to the public good.
(6) Whether the CCD's decision to decide both the application and to deport in one decision-making exercise could be challenged as being unlawful and procedurally unfair.
(7) Whether the Chief Case Worker unfairly and unlawfully involved himself in the decision-making process or in the decision that was taken by another decision-maker 7 weeks after his involvement.
(8) Whether the decision was Wednesbury unreasonable and capable of being set aside on the grounds that it took account of matters that it was impermissible of it to take account of and failed to take account of other matters that it should have taken account of.
- These issues all arise in Yusuf's challenge to the decision dated 13 November 2014. They cannot be raised or raised in full in the proposed appeal against the disproportionality of the proposed deportation. It follows that the proposed FtT appeal is not an adequate remedy for Yusuf's challenges and his judicial review seeking to set aside the entire decision may proceed. It should also be recorded that the original appeal date in February 2015 was adjourned by the FtT with the consent of the parties to await the decision in this judicial review.
M. Issue 12 – Deportation of foreign criminals and article 8 claims
- With effect from 9 July 2012, the IRs were amended to include substantial changes in the way in which the rules deal with family relationships and in particular article 8 of the European Convention on Human Rights. These changes have been supplemented after they were introduced by additional sections 117A – 117D of the NIAA 2002 that were introduced by the IA 2014 and they add to the legislative regime involving the deportation of foreign criminals introduced by the IA 1971 which was extensively added to by the UKBA 2007.
- The starting point for a consideration of this legislative hotch potch is section 3 of the Immigration Act 1971 ("IA 1971") which provides for circumstances in which a person is liable to deportation. The principal circumstance is where the SSHD deems that his deportation is conducive to the public good. Automatic deportation is provided for those who are sentenced to more than twelve months imprisonment as a result of section 32 of the UKBA 2007 which came into effect on 9 July 2008 but subject to a transitional provision that that section does not apply to convictions and sentences that were completed before that date, an exception that covers Yusuf's spent convictions since he was released from prison on March 2005 and his sentence was completed on 20 February 2006.
- For cases subject to section 32, there is no discretion but to make a deportation order, subject to section 33 which includes an exception where the removal pursuant to the deportation order would breach the person's ECHR rights. It is also worth remembering the structure of the HRA which, in section 6 prohibits a public authority from acting inconsistently with ECHR rights which applies to the SSHD as well as the Administrative Court and the FtT. Section 3 of the HRA imposes an obligation to construe legislation so far as possible in a way which is compatible with ECHR rights and section 3 requires a court or tribunal must take into account relevant jurisprudence from Strasbourg.
- The changes to the NIAA and the IRs seek to elucidate the circumstances in which deportation may be considered a disproportionate interference with the deportee's article 8 rights. Having done so, they purport to impose a test of "exceptional circumstances" for all other cases where article 8 is relied upon, but the person does not fall within the circumstances identified in the rules.
- These changes give rise to particular difficulty in this case since the crimes and the completion of their sentence giving rise to the deportation decision being challenged occurred before 9 July 2008 so that the automatic presumption that the deportee is liable to detention and his further presence in the UK is not conducive to the public good do not apply. It would appear that the changes in 2012 and 2014 were drafted without any or any adequate consideration of the relatively few foreign criminals whose qualifying sentences were for terms of imprisonment of one year or more but which were not subject to the provisions of the UKBA 2007.
- These issues arise in relation to the way in which the deportation should have been taken in this case:
(1) What the various stages of the deportation decision were.
(2) Whether the 2012 statutory amendments and the 2014 IR amendments concerned with deportation and article 8 ("the new provisions") applied to the deportation decision.
(3) How the decision should have been taken.
12.2. Relevant IA, IRs and policy provisions
- The relevant legislative provisions and SSHD policy concerned with liability to deportation are as follows:
I. Immigration Act 2014
Article 8 of the ECHR: public interest considerations
117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C. (3) In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(3) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(4) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
II Immigration Rules
322(5) See paragraph [ ] above.
A362. Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these rules as at 28 July 2014 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.
363. The circumstances in which a person is liable to deportation include: (i) where the Secretary of State deems the person's deportation to be conducive to the public good; (ii) where the person is the spouse or civil partner or child under 18 of a person ordered to be deported; and (iii) where a court recommends deportation in the case of a person over the age of 17 who has been convicted of an offence punishable with imprisonment.
363A. Prior to 2 October 2000, a person would have been liable to deportation in certain circumstances. The circumstances in which a person is liable to deportation include: (i) where the Secretary of State deems the person's deportation to be conducive to the public good; (ii) where the person is the spouse or civil partner or child under 18 of a person ordered to be deported; and (iii) where a court recommends deportation in the case of a person over the age of 17 who has been convicted of an offence punishable with imprisonment.
396. Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007.
397. A deportation order will not be made if the person's removal pursuant to the order would be contrary to the UK's obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed.
A398. These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention; …
398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and …
(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months;
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.
399. This paragraph applies where paragraph 398 (b) … applies if –
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; and
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.
399A. This paragraph applies where paragraph 398(b) … applies if –
(a) the person has been lawfully resident in the UK for most of his life; …
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.
399B. Where an Article 8 claim from a foreign criminal is successful:
(a) in the case of a person who is in the UK unlawfully or whose leave to enter or remain has been cancelled by a deportation order, limited leave may be granted for periods not exceeding 30 months and subject to such conditions as the Secretary of State considers appropriate; …
(c) indefinite leave to enter or remain may be revoked under section 76 of the 2002 Act and limited leave to enter or remain granted for a period not exceeding 30 months subject to such conditions as the Secretary of State considers appropriate; …
III. IDI: Deporting non-EEA foreign nationals
Section 32(5) of the UK Borders Act 2007 sets out that the Secretary of State must make a deportation order in respect of a foreign criminal where:
... the criminal was convicted in the United Kingdom and sentenced to a period of imprisonment, and
... the period of imprisonment is 12 months or more, and
... the sentence is a single sentence for a single conviction, it must not be an aggregate sentence or consecutive sentences, and
... the criminal was serving that sentence on or after 1 August 2008, and
... the criminal had not been served with a notice of decision to deport before 1 August 2008, and
... none of the exceptions set out in section 33 of the 2007 Act apply.
2.1.2 Foreign criminals who have been convicted and/or sentenced before 1 August 2008 may still be subject to automatic deportation as long as they meet the criteria above.
Section 3(5) of the Immigration Act 1971 allows the Secretary of State to deport individuals where their presence in the UK is not conducive to the public good. This gives the Secretary of State discretion to act in a way that reflects the public interest. Evidence of serious or persistent criminality must be proved to the immigration (balance of probabilities) rather than criminal (beyond reasonable doubt) standard.
3.1.2 The full facts for why an individual is considered to be non-conducive should be weighed against the relevant factors for why deportation may be disproportionate (length of residence, ties to the UK, the UK's obligations under the human rights and refugee conventions). Initially this will be done on the basis of the information held on the individual by the department. Any subsequent grounds raised within the 20 day deadline must also be considered.
3.2 How to consider if deportation is appropriate, a non-EEA foreign national will normally be considered for deportation pursuant to the Immigration Act 1971 if they do not meet the criteria for deportation under the UK Borders Act 2007 (see Section 2 above) but they have been involved in criminal activity in the UK or overseas and meet one of the criteria below:
... the non EEA foreign national is recommended for deportation by a court empowered to do so. See: Court recommended below;
... the non EEA foreign national has received a custodial sentence of any length for a serious drug offence or gun crime. See: Drug offences (Bournemouth commitment) guidance;
... the non EEA foreign national has committed a crime and received a custodial sentence of 12 months or more. This can be made up of aggregate or consecutive sentences;
... the non EEA foreign national is a persistent offender. "Persistent offender" means a repeat offender who shows a pattern of offending over a period of time. This can mean a series of offences committed in a fairly short timeframe, or which escalate in seriousness over time, or a long history of minor offences;
... the non EEA foreign national has been sentenced to less than 12 months' imprisonment, but the Secretary of State considers that the offending has caused serious harm either in the UK or in another country;
12.3.1 Criminal Casework - Consideration for Non EEA Nationals Relevant considerations
Where the criminal case deportation criteria is met the presumption is that the person's continued presence in the UK is not conducive to the public good. However it is still necessary to consider the offences committed (and previous convictions), the circumstances of them, the judge's sentencing remarks and any other reports, and decide, in the light of these, whether this presumption still stands. Relevant factors that must be taken into account include:-
... Age: Where the person is aged under 18, is unaccompanied (or has family here with indefinite leave), and no adequate reception and accommodation arrangements exist in the country of origin (through the presence of family or otherwise). In such circumstances deportation should normally be deferred until the person turns 18.
... Length of residence in the UK: Where the person has been resident in the United Kingdom for 25 years or more (not counting periods in custody), unless he has been convicted of a serious offence.
... Strength of connections to the UK: Where the person has spent the majority of their formative years (from 0-10 years old) in the UK and has been resident here since.
... Links with country of origin: Where the person has no family in their country of origin, doesn't speak the language, and has not lived in that country for a significant period.
IV Enforcement Instructions and Guidance
... Domestic circumstances: Where the person is married or in a civil partnership or has children (including children living with or in regular contact with the person) and there are insurmountable obstacles to the family accompanying them. The factors that must be considered here are not limited to what would be relevant under the Human Rights Act. However it will only be in exceptional circumstances that the public interest might be outweighed by compassionate circumstances where the deportation would be lawful under the Human Rights Act.
12.3. The deportation decision
- It is now exceedingly rare six years after the coming into force of the relevant provisions of the UKBA 2007 for a foreign criminal to be considered liable for deportation in circumstances where he had been sentenced and/or had completed his sentence before 1 August 2008. However, Yusuf was one such rarity having completed his sentence as long ago as 20 February 2006. Since he was not in consequence subject to the automatic or mandatory presumption that he continued presence in the UK was not conducive to the public good so that he should be deported that would have arisen had his eighteen-month sentence been completed after 1 August 2008, the SSHD first had to decide in a stand-alone or one-off decision that was based on all relevant facts whether his continued presence in the UK was not conducive to the public good. Only after such a balancing exercise had led to the conclusion that he was non-conducive would he have become liable to be deported and a notice of liability to be deported could have been served. Given the facts of his case, a non-conducive decision was not a forgone conclusion and such a decision would have required a detailed review of all relevant facts and an explanation as to why, despite those facts, he was nonetheless liable to be deported.
- Furthermore, even if the presumption applied to Yusuf's case, the new statutory code does not make it clear whether this presumption is absolute or instead is capable of being refuted in exceptional circumstances where its imposition would be contrary to an applicant's article 8 rights. The better view, albeit that this issue was not the subject of argument at the trial, would appear to be that the presumption is rebuttable in very limited and exceptional circumstances. This case, arguably, is sufficiently exceptional that the decision-maker should have considered whether the presumption should be rebuttable and, indeed should have concluded that it was and that it should be rebutted.
- It followed that the decision-making process in Yusuf's case had to go through three distinct stages:
(1) The SSHD decision-maker first had to decide that the deportee was liable to be deported because his presence in the UK was not conducive to the public good. Since 1 August 2008, when section 32(5) of the UKBA came into force, a non-conducive decision was not required since that section introduced a statutory requirement that a foreign criminal whose sentence was at least one year in length had to be deported so that he was automatically liable to be deported.
(2) The SSHD then had to serve a notice of liability to be deported on the deportee setting out why his presence was non-conducive to the public good. The notice had to contain a summary of the information held by the SSHD at the time of the decision that had led to his being liable to be deported. The decision-maker had to inform the deportee that he might, if he wished, make representations within 20 working days as to why he should not be deported. Those representations had to include any human rights claim that the deportee considered should result in his not being deported.
(3) The SSHD decision-maker finally had to consider any representations that were served on the SSHD and then decide whether to serve a deportation order on the deportee. That consideration had to be undertaken in accordance with the new provisions. Unless the decision was favourable to the deportee, the SSHD had to serve the deportation order on him and he had to be deported. Since 20 October 2014, there was only a limited and in this case ineffectual right of appeal to the FtT – whether in-country or otherwise – against that order as a result of amendments to the statutory appeal regime introduced by the IA 2014.
- As was made clear in the IDI, the full facts as to why an individual should be considered to be non-conducive should be weighed against the relevant factors as to why deportation might be disproportionate when the first stage decision that the foreign criminal was liable to be deported. The IDI gave examples of factors favourable to the deportee that should be considered which were his length of residence in the UK, his ties to the UK and the UK's obligations under the human rights and refugee conventions. In Yusuf's case, further matters were also relevant. These included any mitigating factors that had led to very light sentence for his principal offence of GBH, the significant number of occasions when the SSHD had considered his convictions and sentence and had decided that his continued presence was not non-conducive and had not referred his case to the CCD, the lengthy period of time that had elapsed since the completion of his sentence, the unlawful and very lengthy delay in deciding his application for settlement, his mother Laila's British citizenship which had been granted as a BOC who had been effectively statelessness and the extensive family and private life that he had built up since his arrival in the UK some 15 years previously.
12.4. Whether the new provisions applied to the deportation decision
- In Yusuf's pre-UKBA deportation decision, the first liability for deportation stage required the decision-maker to undertake an audit or balancing exercise that weighed up all relevant factors in favour and against deportation that culminated in a decision as to whether his continued presence in the UK was conducive or non-conducive.
- This first-stage decision involved a difficult procedural question, namely whether the decision-maker should have undertaken it by reference to the new provisions or by reference to the, for Yusuf, more favourable provisions of article 8 and the Strasbourg and English jurisprudence that had been built up over the years. The relevance of that potential dichotomy in his case related to his family and private life and, in particular his relationships with Karen and Debra and his four children, his family life with his parents and Yakub and his private life including his employment and the other incidents of a protected private life such as access to health services, pension arrangements, social welfare and such matters as a driving licence and obtaining a mortgage. The decision-maker could place little or no weight on these matters when taking both the initial liability and final deportation decision if the new provisions applied to either of these stages. This is because little or no weight may be placed on a relationship with a partner or with children or on the incidents of a private life for any period when Yusuf was unlawfully present in the UK or on the delay that occurred in reaching a decision on his settlement application or that he would have been granted a favourable decision had his application been decided without any, or any significant unlawful delay or that the SSHD had repeatedly been made aware of his criminal offending and had on each occasions decided not to refer his case to the CCD.
- The provisions of the IA 2014 are stated to be applicable to a consideration by a court or tribunal as to whether any decision taken under the Immigration Acts breached a person's right to respect for private and family life under article 8, and as a result would be unlawful under section 6 of the HRA. That consideration must be carried out by reference to the restricted process identified in the IA which, by inference, is intended to prescribe how the underlying decision should be taken. This approach is to be contrasted with the wording of the IRs also forming part of the new provisions. These provide for an even more restrictive approach than that prescribed by the IA. However, this yet further restrictive approach is only applicable to the consideration of a deportee's reliance on article 8 once he has become liable to be deported in order to defeat or avoid deportation.
- It would seem, therefore, that the new provisions in the current IRs are not applicable to the initial decision since, at that stage, the foreign criminal is not liable to be deported but is instead being considered for a possible finding that he is so liable. However, notwithstanding this limitation provided by the wording of the IRs, paragraph A362 provided that where Article 8 was raised in the context of deportation under Part 13 of the IRs, the claim under article 8 would only succeed where the requirements of these rules as at 28 July 2014 were met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served. That provision suggests that the provisions of the amended IRs are applicable but against that, it might also be said that they are not ones that should affect the non-conducive decision since that decision does not involve consideration of an article 8 claim.
- I conclude that there is, strictly speaking, a difference of approach that should have been used in this case when the decision-maker took the initial non-conducive decision compared with the required approach when taking the final decision. I do not propose to decide that question however since it is my view that there is a short answer to this conundrum which is that the restrictions contained in the new provisions were not applicable to either stage of the decision-making process. It must be remembered that Yusuf is only susceptible to deportation under the relatively recent regime created by the IA 2014 and the post 2012-versions of the IRs because the SSHD unlawfully and without justification delayed taking the decision in his settlement application for ten years. It would be both unfair and incorrect in principle for the SSHD now to rely on a restrictive interpretation of article 8 that was first promulgated many years after the settlement application should have been decided and in circumstances where, had it been decided earlier, would have produced a favourable decision for Yusuf.
- The relevant statutory provisions that give rise to a new and more restrictive application of article 8 in this case are those which provide that little weight should be given to a private life, or a relationship formed with a qualifying partner that was established by an applicant at a time when he was in the United Kingdom unlawfully. Furthermore, little weight should be given to a private life established by a person at a time when the person's immigration status was precarious. Equally, the requirement that the public interest did not require the removal of a person who was not liable to deportation where that person has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the United Kingdom was applicable to both Yusuf and Yakub throughout the relevant ten-year period given the unlawful and lengthy delay that they were subjected to.
- In this case, Yasin's, Yusuf's and Yakub's immigration status was not capable of being described as precarious throughout the period of ten years that their decisions were being unlawfully delayed by the SSHD. Moreover, their presence was not correctly characterised as being unlawful and the public interest did not require their removal in that period. It follows that the decision-maker in their cases should have given full weight to their private and family lives that they had established and maintained during that period and any failure to take those matters into account would amount to a breach of article 8 which the court is now bound to remedy.
- I therefore conclude that the SSHD was required in law to undertake a full assessment of Yusuf's situation by taking everything relevant into account before it concluded that he was liable to deportation and that that consideration was not restricted by the terms of the IA and current IRs albeit that those terms had to be taken into account when considering whether deportation now following a conviction over 10 years ago should or should not be countenanced given its impact on Yusuf and his private and family life.
- This conclusion follows from an application of the facts of their cases to the new IRs and other statutory provisions. This is because section 117B of the IA 2014 does not provide an absolute prohibition on considering a person's private or family life during periods of unlawful presence in the UK but instead provides that little weight should be given to those periods. Moreover, article 8 considerations are only inapplicable to periods when the foreign criminal's presence in the UK is precarious and unlawful. Finally, Yusuf's circumstances were, apparently, very compelling or, at the very least, worthy of detailed consideration as such.
12.5. Errors in the SSHD's approach to the non-conducive liability to deportation decision
- The CCD CCW and subsequently the CCD decision-maker overlooked the need to reach a stand-alone bespoke decision about Yusuf's deportability. The decision opened with this finding:
"2. On 20 August 2004 at Reading Crown Court you were convicted of affray, wounding with intent to do grievous bodily harm and two counts of common assault, for which you were sentenced to 18 months imprisonment. As a result of your criminality, your deportation is considered to be conducive to the public good and as such you are liable to deportation by virtue of section 3(5)(a) of the [IA 1971]."
It is not clear whether the finding that his deportation was considered to be conducive to the public good arose because of the automatic imposition of the mandatory statutory assumption – even though it was not applicable in Yusuf's case – or because the decision was a fact-based decision that had been based solely on the fact that he had been convicted of GBH, affray and two assaults. It is true that the decision referred to Yusuf's criminality as the basis for the decision that he was non-conducive but it would seem from the preceding sentence in the decision that the only basis for concluding that his criminality or criminal propensity made him non- conducive was that he had been convicted in 2004.
- In either case, therefore, the SSHD's approach was wrong. However, it is no doubt said on behalf of the SSHD that this error would have made no difference to the result so that it should not give Yusuf a basis for challenging the decision since Yusuf would inevitably have been found to be liable to deportation had the correct approach to the decision been adopted and applied. That view appears to be supported by the IDIs, the relevant part of which states that foreign criminals not subject to mandatory deportation decisions will normally be considered for deportation if their custodial sentence is for more than one year. However, the IDIs then go on to list a variety of considerations that a decision-maker must take into account if relevant and it is clear therefore that all relevant facts and considerations relating to the liability to deportation decision must be weighed in the balance before the decision is taken.
- This case involved several very unusual circumstances that should have been taken into account when the non-conducivity decision was taken. Had the decision-maker taken the decision correctly, he would have had to have taken account of the facts of Yusuf's convictions, the judge's sentencing remarks, his pre-sentence report, the reasons why no deportation decision had been taken at any time after Yusuf's release from prison in March 2003, the reasons why the settlement application remained undecided for over ten years and who was responsible for that state of affairs, the facts surrounding each of the occasions when the relevant convictions came to the attention of the SSHD and why on each occasion nothing was done to consider or implement his deportation or to refer his case to the CCD, Yusuf's current risk of reoffending, the nature and extent of his current and past relationships with other adults and with his children and all other facts relevant to his private and family life.
- It would have been particularly relevant to consider why his convictions had not been referred to the CCD prior to May 2014 despite the many occasions on which they were brought to the attention of the SSHD. Indeed, the decision, erroneously and laconically, stated that:
"84. … Although your conviction was 10 years ago, it was for a violent offence and in addition to this you have been convicted of several driving offences, including driving in excess of alcohol. As such, it is considered that the circumstances of your offence is enough to warrant your deportation from the UK.
85. During your period of imprisonment your case was not referred to the SSHD Criminal Casework team to consider your deportation. Your conviction subsequently came to light when you were interviewed by an Immigration Officer on 1 September 2014, after being encountered by the police and held in custody. The delay between your conviction and this decision does not reduce the public interest in deporting you, given the nature of your conviction."
This summary is a travesty of the actual factual situation which has been summarised in detail in this judgment. In short, the facts of Yusuf's convictions had been brought to the attention of various caseworkers, case handlers, IOs, case owners and others in various Directorates on many occasions since March 2005 and none of these individuals considered that Yusuf's offending or criminality sufficiently serious that it should be brought to the attention of the CCD, no doubt because of his mitigation, the age of the convictions, the unfairness of taking an adverse view to predecessor SSHD officials without there being a good reason for doing so and his low risk of further offending.
- Various considerations arising in an article 8 claim should have been taken into account. Firstly, there was no consideration of the effect of the ten-year delay on the decision in circumstances in which that entire delay was caused by the SSHD's breaches of Yusuf's article 8 rights relating to both his family and private life. In those circumstances, it was grossly unfair and unlawful for the SSHD to rely on the restrictions contained in the statutory code created by the new provisions introduced since 2005 which it could not have relied on had the decision been taken as it should have been before 21 December 2004. In particular, Yusuf should have been entitled to rely on a family life with his children and his partner Debra and his previous relationship with Karen even though the code of new and amended provisions states that no or only limited reliance may be placed on relationships with a partner or children that occurred at a time when the applicant had no LTR and was an overstayer. Furthermore, he should have been entitled to rely on his private life that had been both built up and interfered with in the same ten-year period.
- The SSHD's approach was flawed in three fundamental respects. Firstly, it should have separated the decision so that the settlement application decision was returned to the OLCU to be decided first and in advance of any consideration of deportation and without any reference to or knowledge of Yusuf's spent convictions. Secondly, if and when the deportation decision was considered by the CCD, it should have been split so that, initially, the non-conducive decision was taken and the deportation decision only taken at a second stage if the decision-maker had formally decided that Yusuf was liable to be deported. Thirdly, the deportation decisions should have been taken without being subject to the restrictions arising from the new measures introduced by the code provided for in the 2012 amendments to the IRs and the amendments to the NIAA introduced in 2014.
N. Issue 13 – Yusuf's Decision – judicial review and declaration
The decision to deport Yusuf, to refuse his human rights claim and his SET(M) application was dated 13 November 2014. He seeks an order quashing this decision on the grounds that it is unlawful, Wednesbury unreasonable and inconsistent with the decisions in Yasin and Yakub's cases. An examination of the decision must take account of the fact that:
(1) it is a three-fold decision which decides to deport Yusuf and to refuse his human rights claim and his SET(M) application;
(2) the grounds for deporting him are that his presence in the UK is not conducive to the public good as a result of his historic conviction in 2004 that predated the relevant deportation provisions of the UKBA 2007 and the IA 2014;
(3) it is subject to the transitional provisions of LASPO and paragraphs 322 and A398 – 399B of the IRs; and
(4) it is subject to the extensive and newly introduced provisions of the section 117A – 117C of the IA and paragraphs 322(5) and A398 – 399B of the IRs.
13.2. The decision
- The decision is well-structured, detailed and superficially sound. It is only after careful consideration with a detailed knowledge of the twelve years' background to Yusuf's case that its errors emerge with any clarity. The decision first summarised the reasons for deportation. These were that Yusuf was convicted in August 2004 of GBH, affray and two counts of assault and sentenced to 18 months imprisonment. As a result of that criminality, his deportation was considered to be conducive to the public good and he was liable to deportation since paragraph 396 of the IRs provided that there was a presumption that the public interest required the deportation of someone who was liable for deportation. The decision then summarised Yusuf's immigration and criminal histories, the perceived asylum claim he was thought to have made in 2006 which it accepted had not been made and a consideration of the Zambrano decision which was shown to be irrelevant to Yusuf's case.
- The decision then summarised Yusuf's article 8 claim which was put forward in order to defeat the deportation decision. This was that he had established a significant family and private life in the UK where he had been resident for 15 years since he was 16 years old during which time he had had two British children with his previous partner and two with his current partner. The decision then examined the evidence that had been received by the CCD and concluded that that showed that he met the requirements of the exception to deportation on the basis of family life with a child or with a partner or the family life exception.
- The decision then considered whether there were very compelling circumstances created by a very strong article 8 claim over and above the circumstances in he exception to deportation and having reviewed his case concluded that there were none.
- The decision concluded that Yusuf's deportation would not breach the UK's obligations under article 8 because the public interest in deporting him outweighed his right to a private and family life.
- The decision then turned to Yusuf's outstanding settlement application. It stated:
"91. On 1 September 2004, you applied for indefinite leave to remain in the UK outside of the rules. Your application is hereby refused under paragraph 322(5) of the Immigration Rules, in light of your criminality. This is not a concession that you would otherwise meet the requirements of the Immigration Rules."
- The decision concluded by confirming that his human rights claim had been refused and the decision to deport him had been maintained and finally explained his rights of appeal and that he would be deported if he did not appeal or if his appeal was unsuccessful.
- This decision contained a number of material errors. Amongst these were the following:
(1) The immigration history made no reference to Laila's application to be registered as a British citizen dated 15 March 2003 which included an application for ILR on behalf of Yusuf as her dependant which was subsequently dealt with but not concluded by the SSHD during 2003.
(2) It is wrongly asserted that the CCD, and by inference the SSHD, only first became aware of Yusuf's conviction and sentence on 1 September 2014. In fact, the SSHD had been aware of it since March 2005 and the CCD itself became aware of it when Yusuf's case was referred to the CCD because of that conviction in June 2014.
(3) It is wrongly asserted that Yusuf was recommended for deportation by the sentencing judge when no such recommendation was in fact made. The materiality of this error is that such a recommendation has always been considered as a major factor in deciding that a convicted foreign criminal is liable to be deported and should be deported. The subsequent acceptance by the SSHD that this was an error does not correct the erroneous nature of the decision since the decision-maker had this erroneous fact in mind when taking the decision.
(4) Yusuf's relationship with each of his three children and one unofficial step-child were not accepted to be genuine and his deportation would not be unduly harsh because he could maintain contact with each of them by telephone and by visits. In fact, the evidence including corroborative independent evidence showed that Yusuf appeared to have a good and strong relationship with each of his children.
(5) It was wrongly asserted that Yusuf lived in London and that that demonstrated that he did not have a close relationship with his children. In fact, he had never lived in London, he had been living in Reading and at the time of the decision was living in his own accommodation in Peterborough. The evidence suggested that he continued to visit Debra and his two children living with her in Reading on a regular basis and also continued to visit Karen and his two children living with her in Peterborough on a regular basis.
(6) It was not accepted that Yusuf had developed a significant private life in the UK or was socially and culturally integrated her despite the evidence, including independent corroborative evidence, to the contrary.
(7) It was not accepted that Yusuf would have very significant obstacles in re-integrating into a life in Kenya despite the evidence, including independent corroborative evidence, to the contrary.
(8) It was not accepted that there was any evidence that Laila had been the primary carer for both of Yusuf's elder children because of Karen's inability for psychiatric and social reasons to care for them despite Laila's evidence and other evidence to the contrary.
- These errors, taken cumulatively, could have had a major determinative influence on the adverse nature of the decision.
13.3. Errors and omissions
- The decision contains a number of significant errors and omissions of law and fact in addition to the factual errors already identified.
- No consideration of certain legal issues requiring determination. The decision omitted to address three significant legal issues:
(1) The issue arising from the fact that Yusuf's convictions occurred and his sentence was completed before 1 August 2008 so that he was not subject to the mandatory provisions of the UKBA 2007 that created a presumption that a deportee whose sentence was one year or more in length was liable to deportation and to be someone whose continued presence in the UK was not conducive to the public good. Yusuf therefore could not be deported unless the decision-maker exercised his discretion in a one-off exercise involving a review of all relevant circumstances and decided that Yusuf was liable to be deported.
(2) The issue arising from the LAPSO transitional provisions which had the effect that Yusuf's convictions were spent and could not be referred to during the decision-making process relating to his application for settlement but had to be referred to when he was considered for deportation.
(3) The issue arising from the statutory and IR provisions defining in a complete code the practice to be followed by a decision-maker when considering an article 8 claim when deciding an article 8 claim from someone liable to deportation on the basis of criminal convictions. These provisions do not, on their face, apply to a determination in cases like Yusuf's case as to whether the deportee is liable to deportation at all in a one-off determination involving a review of all relevant circumstances. In consequence, it has to be decided whether the terms of article 8 without gloss or interpolation or the statutory code or some other approach should be adopted in order to determine that question. It also has to be decided how the legislative changes introduced with effect from 9 July 2012 that introduced the complete code are to be interpreted and applied to Yusuf's article 8 claim.
- Rolling up the deportation and settlement application decisions. When considering Issue 6, I determined that the effect of the LAPSO transitional provisions as applied to the facts and circumstances of Yusuf's case was such that it was unlawful for the SSHD to consider and decide in the same decision-making process Yusuf's settlement application and whether he should be liable to deportation and deported. This was because his convictions were spent and could not be considered during the decision-making process concerned with his application but had to be considered during the decision-making process concerned with his deportation.
- However, the CCD adopted a procedure whereby his deportation was decided as an integral part of the application decision and that Yusuf had no option but to have his spent convictions considered and relied upon in both processes. Indeed, the application decision referred in terms to his spent conviction when it stated:
"91. Your application is hereby refused, under paragraph 322(5) of the Immigration Rules, in the light of your criminality."
It is clear from paragraph 2 of the decision that "your criminality" is a reference to Yusuf's spent convictions. Furthermore, paragraph 322(5) of the IRs under which the application was refused provided that LTR should normally be refused in an application for LTR in the light of the undesirability of permitting the person concerned to remain in the UK in the light of his conduct, character or associations. The only matters relied on in the decision as constituting Yusuf's relevant conduct and as identifying his relevant character were his spent convictions and his criminality in committing those convictions.
- It follows that the decision unlawfully referred to Yusuf's spent convictions. The only way that the matters that the CCD had to decide could be decided lawfully was for it to split the two decisions into two separate hearings, to transfer Yusuf's application back to the OLCU for it to decide in a process in which all references to those convictions was expunged and for the CCD to consider and decide whether he was liable to deportation and should be deported after the application had been decided and in the light of the decision promulgated by the OLCU.
- Liability to deportation decision. The decision as to whether or not Yusuf was liable to deportation was referred to the CCW who decided he was following a cursory look at his PCN entry. The CCW was unaware that that decision was not automatic or mandatory since it was being taken in relation to an old case to which section 32(5) of the UKBA 2007 was not applicable. The CCW should have called for the complete file and reviewed the entire history of the case and undertaken a balancing exercise. The CCW would have known – or should have known – that the case was one to which the UKBA was not applicable and should not have proceed without first being satisfied that the spent conviction could be referred to and that Yusuf was liable to deportation on the unique facts of his case. This consideration should have been carried out without reference to sections 117A – 117D of the NIAA or IRs 398 - 399D.
- Whether the CCW unlawfully fettered the discretion of the decision-maker. The way that the CCD took the decision is set out above. It can be seen that the CCW appeared to direct the caseworker who would take and draft the decision that Yusuf was liable to be deported and should be deported and that the CCW should take deportation action to ensure that he was deported. These directions were issued and handed out before Yusuf had been served with the notice to deport or had been given the opportunity to make submissions and submit documents to the CCD. Thus, when the decision-maker came to make his decision, he was faced with a clear instruction as to the decision he was to come to and had no option but to produce a structured decision giving effect to those instructions. It is not clear whether and to what extent he took account of Yusuf's submissions and evidence but these would seem to have been irrelevant since the decision was, by the time these were in the hands of the decision-maker, already a foregone conclusion.
- The effect of this is that the CCD unlawfully fettered the decision of the decision-maker and reduced Yusuf's evidence and its preparation to a formality which would have no bearing on the decision that would be made as to deportation, his human rights claim and as to settlement.
- The effect of the decision-maker relying on Yusuf's spent convictions. The procedure adopted involved his spent convictions being placed before the decision-maker of both deportation and settlement and the terms of the former which inevitably relied heavily on Yusuf's spent convictions both shaped and determined the settlement application. All three parts of the decision were, in consequence unlawful.
- Obstacles to reintegration into Kenyan society. The decision finds it was not accepted that Yusuf would face very significant obstacles to his reintegration into the Kenyan way of life on his return there. No reasons are given for the decision-maker's rejection or non-acceptance of Yusuf and his family's evidence that they had lost all contact with Kenya. The decision should have analysed all the evidence submitted for the decision and then provide a reasoned decision for accepting or rejecting that evidence.
- Very compelling circumstances. The circumstances of this case were unique. Their background included the fact that Laila obtained British citizenship only a few weeks after the relevant provision became law, over ten years unlawful delay, very old spent convictions and detailed evidence concerning the applicant's four children and his former and current partner. This set of circumstances had led to Yasin being granted discretionary LTR and Yakub 30 months discretionary LTR. The decision-maker ignored all this evidence and did not adduce it. This failure to take account of it in the decision was unlawful.
- Outstanding application decision. The outstanding application decision should have been taken in isolation from the deportation decision and Yusuf's article 8 claim. The manner in which the decision was taken was unlawful
13.4. Judicial review
- Introduction. Yusuf seeks an order setting aside the decision dated 13 November 2014. Various grounds are relied on but these can be slimmed down and expressed as three separate conventional judicial review grounds.
- Wednesbury unreasonable. This ground is that the decision failed to rely on much evidence and other materials that it should have relied on. For example, significant evidence was overlooked in deciding that Yusuf was liable to deportation, in deciding that he did not have a family life with his children and partner, or a private life or that there were no obstacles to his re-integrating into Kenyan society or that there were no very compelling circumstances why he should not be deported. Moreover, the decision contained several highly significant mistakes of fact which were, or may well have been, relied on when they should not have been.
- Illegality. This ground is that the decision was unlawful in a number of significant ways. For example, the part of the decision concerned with Yusuf's application relied on his spent convictions when it should not have done, the transitional provisions of LAPSO were ignored, no attempt was made to determine whether Yusuf was liable to deportation, the procedure that was adopted was unfair
- Inconsistency. Yusuf's application was linked to Yasin's application and should have been decided with it and consistently with it. There was no good reason for severing that link and since Yusuf's convictions were spent, it should have been decided consistently with the decision in Yasin's case, That pointed to the grant of ILR particularly as Yusuf's spent convictions could not be relied on or considered during the decision-making process for the decision concerned with his application.
- For all these reasons, the entire decision dated 13 November 2013 is flawed and should be set aside forthwith. The application should be reconsidered separately from the question of deportation and the decision-maker should be unaware of the spent convictions and any reference to them removed from the papers that he considers. The decision should be taken before the CCD takes any decision in the deportation consideration and a procedure devised which enables a speedy fresh decision.
O. Issue 14 – Whether the Damages Claims should be Stayed for the Complaints Procedure
14.1. The issue
- This issue was raised by the SSHD at such a late stage that it could not be argued at the hearing and no copy of the BFCP was available at the hearing or is to be found on the SSHD's website. The issue was developed in post-hearing written submissions which included the SSHD providing a copy of the BFCP and a brief witness statement explaining it. I dismissed the application with reasons in the draft judgment which was not handed down at the handing down hearing because of the long list of suggested editorial corrections that I was provided with at a late stage. I received a detailed application for permission to appeal from the SSHD's counsel which adumbrated the SSHD's submissions in greater detail than had previously been possible. I considered that although my decision to dismiss the stay application remained good, my reasons for reaching that conclusion had not been fully or adequately set out in the draft judgment. I have therefore maintained the text of the draft judgment but added to it substantially.
- This issue is concerned with each claimant's claim for substantial damages arising from the alleged breaches of their article 8 rights in failing to provide decisions in their applications for ten years and in various acts and omissions that have contributed to the length of the delays and the consequent inconvenience and loss that has resulted. The SSHD now contends that there is an adequate alternative remedy for each claimant that is provided by the SSHD UKVI/Border Force Complaints Procedure ("BFCP") that enables a claim to be submitted to the SSHD and paid by it for financial redress arising out of maladministration by officials in the provision of immigration services.
14.2. The Complaints Procedure
- The BFCP is described in great detail in Version 7 of the Complaints Management Guidance Booklet that was adduced in evidence at a late stage in the post-hearing written submissions procedure adopted in this case. The Booklet does not provide a structured process for the submission, processing and deciding of complaints and does not define the limits of its terms of reference or the principles that should be applied in determining both the availability of financial compensation and its quantification.
- It is possible, however, to list some general conclusions as to the nature and structure of the BFCP that would apply to the claimants' claims in this case. These are as follows:
(1) In principle, any service customer may make a complaint which, if made, will be referred to the SSHD's Customer Service Operations who has overall responsibility for complaints management. The procedure is simple and involves a written complaint being made on a standard form which is decided on paper and the decision notified in writing within a very short timescale.
(2) The complaints that are covered by the procedure are principally maladministration and failings of administration. In particular, such matters as the losing of documents, the provision of erroneous advice of an administrative nature, taking incorrect action and failing to respond to correspondence are covered.
(3) Financial redress may be awarded which may be both general for distress, inconvenience and other similar emotional factors and specific for loss directly attributable to the maladministration.
(4) Delays are not classed as maladministration save in exceptional circumstances where the delays have a financial impact. Examples of such compensation are replacement of lost passports, travel costs unnecessarily incurred, loss of earnings.
(5) In exceptional circumstances, ex gratia payments that are intended to provide modest compensation for loss not caused by maladministration are also available. Similarly, modest payments for breaches of a customer's human rights may be contemplated in exceptional circumstances.
(6) The complaints procedure is not designed or suitable for complex claims. Thus, claims presenting difficulties of law, factual ascertainment or those more suited to an adversarial dispute resolution process are not intended to be covered by the procedure.
- The BFCP procedure is, regrettably, neither set out in a succinct and precise form nor is it readily available or well-publicised. Its existence is, however, sufficiently well-known to practitioners that, in 2011, it processed over 10,000 complaints of maladministration against the UKBA
14.3. The unsuitability of the complaints procedure in this case
- The BFCP is clearly an admirable process for complaints which can be resolved speedily, economically and simply and with relatively modest input in terms of time and resources and which do not involve the deployment of skill, experience or training by the individual to whom the complaint is referred for disposal.
- The claimants' claims have none of the characteristics of complaints ordinarily referred to this complaints procedure, they are of a nature that makes them wholly unsuitable for it and they appear to be outside its scope or terms of reference. This is because the claims are highly complex and involve considerable time, energy and skill to resolve and difficulties of both fact and law. Moreover, they are not merely based on complaints of maladministration but are also based on significant and extensive breaches of the claimants' human rights. As an example of the inappropriateness of this procedure for these disputes, it was submitted without any evidence from the decision-maker to explain how the decision was quantified and on what it was based that it had been made in error although its nature was not identified. The decision purported to resolve Yasin's complaint which had previously been withdrawn two days after it had been made on the grounds that the procedure was inappropriate to resolve his complaints. The proposed decision involved the offer of the derisory sum of £500 to Yasin for the entire 10-year period covered by his complaint and it did not even consider the complaints of either Yusuf or Yakub.
14.4. SSHD's submissions for its stay application in reliance on MD (China)
- The SSHD drew attention to two authorities where the Court of Appeal suggested that a BFCP-type procedure should be used as a substitute for judicial review proceedings where the claimant was seeking modest compensation for delays where there was little if any dispute as to the facts or the law. Attention was particularly focused on MD (China) v SSSHD.
- The SSHD contended that the claims for damages and just satisfaction should be stayed because there was an alternative and more satisfactory way that these claims could and should be resolved through the BFCP since these claims were very similar to the claims in issue in MD (China), the same complaints procedure was available in the claims considered in that case, the principles identified by the Court of Appeal applied with equal force to those that should apply in this case and in that case the Court held that the claims for judicial review should be stayed pending the determination of the claims for monetary compensation through the BFCP. In particular, it was contended in this case that any financial compensation would be "relatively modest". This was a telling feature of the cases considered in MD (China) where the Court of Appeal stressed that it would be monstrous if modest claims of the size contemplated in the cases it was considering should be pursued through judicial review in circumstances where the costs to be incurred would be disproportionate to the recovery to be achieved. In that case the costs were estimated to be at least one hundred times greater than the sums that might be awarded.
- It is helpful in considering these contentions to set out a significant part of the judgment of the Court of Appeal delivered by the President of the Queen's Bench Division, Sir John May, in MD (China):
"1. The five claimants are each eventually successful asylum seekers who suffered unacceptable delay through maladministration in the provision on behalf of the Secretary of State of the status papers to which their successful asylum application entitled them. They began these judicial review proceedings with the main purpose of obtaining these papers, and in each case that has now been accomplished. They also claim damages, compensation or just satisfaction for the consequences of the delay, asserting that their rights under Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol had been violated. Speaking generally, they claimed that the effects of not having status papers included that they were unable to work, unable to claim full welfare benefits, unable to travel abroad, and unable to have bank accounts or driving licences, and that if might delay their ability to apply for British citizenship. The respective delays in the provision of status papers were 10½ months, 5½ months, 9 months, 10 months and 7 months. Mr Drabble QC, representing them, reckoned that 4 months was the longest unobjectionable period, after which there would be at the very least a legitimate complaint of maladministration attracting compensation. The amount of individual pecuniary loss claimed is in the order of £1,800 calculated by reference to the full period of the delay less 28 days when the benefits of an asylum seeker continued to be payable. Mr Drabble reckoned that 500 Euros was the kind of level of non-pecuniary award which the European Court of Human Rights in Strasburg might award for an established breach of Article 8 of this kind. We are told that the costs of both sides in these proceedings so far are in the order of £110,000.
2. It was entirely legitimate to start these proceedings with the main practical aim of obtaining the requisite status papers. That has long since been achieved. The conduct of the proceedings on behalf of the Secretary of State was initially inept. But by the time the matter came for hearing before Treacy J on 5th May 2010, the Secretary of State had in each case openly admitted that the delays had been unacceptable, apologised and set in train an internal complaints procedure with a view to assessing and paying compensation. The Secretary of State had also taken administrative steps to see that delays of this unacceptable kind were avoided for the future. Treacey J held that the position was very much improved. The claimants did not in the main co-operate with the operation of the complaints procedure, contending, no doubt on advice, that irrespective of compensation and notwithstanding the Secretary of State's acceptance of the substance of their complaints and apologies, they were entitled to findings by the court that their Article 8 rights had been violated. The Secretary of State has understandably not been prepared to accept this, since the question whether in a particular case rights under Article 8 have been violated is fact specific, and it would be a question for investigation whether in the case of each individual a necessary minimum level of severity of interference with private or family life had occurred. It was not appropriate for administrators who were not trained lawyers to be asked to make admissions of this kind. Nor was it necessary, since to categorise admittedly unacceptable delay as a violation of Article 8 would have no material effect on the level of compensation – Mr Drabble did not contend that it would – and it could not seriously be contended that characterising admittedly unacceptable delay as a violation of Article 8 would be of any material benefit at all to the claimants.
3. So it was that Treacy J decided that the proceedings had become pointless and that they should be stayed – not dismissed – so that an application might be made to revive them, if the complaints procedure was unable to resolve some issue which really did proportionately require the court's decision. Treacy J's judgment may be found at  EWHC 1015 (Admin) and it may be referred to for greater detail than this judgment need contain. Laws LJ was persuaded to give the claimants permission to appeal. The appeal has engendered a lot of paper and expense.
4. The complaints procedure is internal to the UK Borders Agency, and we understand that it is not in its complete written form readily accessible to the public. But its existence and availability are sufficiently known for it to handle over 10,000 complaints a year. The written guidance is very detailed. It provides for dealing with complaints concerning delay in the delivery of a service. It provides for the assessment and payment of actual financial loss of the kinds said to have been suffered in these cases. It provides for apology and explanation and for non-financial loss where maladministration has directly caused a person exceptional distress, embarrassment, inconvenience, damage to health and so forth. The compensation provisions therefore cover all the main matters of which these claimants complain. There is provision for a review of a first decision. The procedure is not independent, but it does provide a structured means of addressing complaints, which ought to be used in appropriate cases, of which these are examples. It is capable of providing everything material which these claims aim to achieve by a much more economical means than court proceedings. If the complainant is dissatisfied with the outcome, there is the possibility of the case being referred at the instance of a Member of Parliament to the Parliamentary Ombudsman.
5. As we have said, Treacy J regarded the judicial review proceedings as being pointless by the time the case reached him. The judge related the facts and observed that the offers of compensation could be viewed as generous, since, even if the claimants were to succeed in showing that the delays were unlawful and that there was a breach of Article 8, an award of damages would not necessarily follow. The claimants have their status papers, which must be regarded as the primary aim of the litigation. The judge accepted submissions with reference to Anufrijeva v Southwark London Borough Council that, in cases of delay in administrative process, there will only be an infringement of Article 8 where the consequences for the complainant are serious or amount to causing him serious prejudice. The issue before the court would be fact specific. The judge noted with reference to Rule 54.4 of the Civil Procedure Rules that courts will not normally grant permission to apply for judicial review where there is an adequate alternative remedy which the claimants could use or could have used, and that permission may be refused where the claim is academic. It was true that cases referred to involved statutory complaints schemes, but that was not necessarily determinative. Cowl v Plymouth City Council , which we refer to below, was an example of a more informal alternative remedy. He referred also to paragraphs 79 to 81 of Anufrijeva. The judge expressed great concern about the disproportionate costs which continuing the proceedings would engender. In response to Mr Drabble's submission that the claimants had a good prospect of establishing unlawfulness and breach of Article 8 which the Secretary of State's letters did not acknowledge and that they were entitled to the vindication of a declaration by the court, the judge was doubtful whether there was any significance to the claimants in the difference between a judicial declaration and the acknowledgement made in the letters. It would be wholly disproportionate to permit the proceedings to continue merely to obtain a judicial declaration. If obtaining a declaration was paramount, it would be hard to see when alternative dispute resolution could ever be used. The judge did not consider that the legal principles were seriously in issue. It was their application to the facts which would be the battleground. …
8. The Practice Note in R (Cowl) v Plymouth City Council also illustrates the importance, even in disputes between public authorities and members of the public, of avoiding litigation wherever possible. Both sides must be acutely conscious of the contribution which alternative dispute resolution can make to resolving disputes in a manner which both meets the needs of the parties and the public and saves time, expense and stress. It was too narrow an approach to suppose that complainants were entitled to proceed with the claim for judicial review unless a complaints procedure on offer technically constituted an alternative remedy which would fulfil all the functions of judicial review. The court should not permit, except for good reason, proceedings for judicial review to proceed if a significant part of the issues between the parties can be resolved outside the litigation process. …
13. In our judgment, the judge was entirely correct to decide that the continuation of these proceedings is pointless and disproportionately expensive. Although there may be circumstances in which inviting the court to declare that a person's Article 8 rights have been violated is justified by a legitimate need to establish that and for vindication, the circumstances of the present cases do not begin to provide such justification. The claimants' status papers have long since been issued. The Secretary of State has openly accepted that the delay was unacceptable maladministration and has apologised without reservation. Steps have been taken to rectify the administrative deficiencies which led to the delays. A properly structured complaints procedure is available and has been set in motion to assess compensation. Establishing that the admittedly unacceptable delay resulted, if it did, in a violation of Article 8 rights will not materially enhance the existing law, will not enlarge the ambit of compensation, will not assist in the disposal of other cases, and will not provide the claimants with greater vindication or comfort than they already have. It would constitute an egregious accretion of human rights paraphernalia to a body of learning which is already at risk of overburden, whose real value to the law would be minimal and to the claimants nil. The money already spent on these proceedings after the Secretary of State conceded the case has been disproportionate. To spend further money would be horrendous, to use Lord Woolf's expressive adjective."
- This decision was reached in the context of a judicial review claim seeking a mandatory order for the provision of status papers that the claimants required in order to pursue an asylum claim. The provision of these papers had been delayed for periods varying from six months down to one and a half months delay that had occurred due to the admitted maladministration of the SSHD. The actual period of delay in each case was four months longer than these various periods but it was accepted that that further period did not amount to maladministration but no admission had been made that the claimants' article 8 rights had been violated. The claimants also claimed damages and a declaration that their article 8 rights had been violated. By the time the case reached the judge for a substantive hearing, the status papers had been provided and each claimant had been granted asylum. Furthermore, in the light of the admission of delay for the entire period of claimable delay due to maladministration, the SSHD accepted that each claimant was entitled to damages of £1,800. Each claimant had also received a formal apology and the SSHD had taken steps to improve its administration of the process of providing status papers to asylum seekers. The claimants still wished to maintain a claim in the outstanding judicial review for a declaration that their article 8 rights had been breached. It was in that context that the judge stayed the claimants' surviving claims for compensation and a declaration of breach.
- The judge stayed the claims having taken account of CPR 54.4 which provides that an applicant for a judicial review remedy requires permission to proceed. As a matter of discretion, the Administrative Court will ordinarily refuse permission – or refuse to permit a claim to proceed to a full hearing if permission has been granted but circumstances have since changed – where an adequate alternative remedy existed which could or should have been, or could be, used. If the claim is stayed on this basis, a claimant can subsequently apply to have the stay lifted and the claim revived once the alternative remedy has been sought in a way that does not satisfy that claimant. The Administrative Court would, if it was satisfied that the complaints procedure had been unable to resolve an issue which really did proportionately require the court's decision, lift the stay and proceed to decide the outstanding claim on ordinary judicial review principles.
- This judgment of the Court of Appeal affirmed the judge's decision on the grounds that the claimants outstanding claims could readily be determined by the BFCP, that the matter that the claimants contended required determination by the Court, being the claim for a declaration that the claimants' article 8 rights had been violated, did not require determination given the SSHD's admission of liability for its maladministration and in any case the judicial review claims were wholly disproportionate in comparison to the costs of pursuing them, particularly given the court's duty to seek to ensure that litigation had to be pursued proportionately particularly when a speedy, cheap and proportionate dispute resolution procedure existed to resolve a modest claim in a particular case.
- The issue as to whether a judicial review claim should be stayed to enable a suitable alternative remedy to be pursued is fact specific and subject to the overriding discretion of the judge who may, in exceptional circumstances, decline to stay a claim even if a suitable alternative remedy is available. Such circumstances would include a case where a decision on a difficult issue of law would assist the public in other cases or where a defending party's conduct made it appropriate to continue with the dispute in the judicial review proceedings.
- There are four discrete and overlapping bases for considering that these claims for damages should not be stayed to enable them to be pursued through the BFCP. These are, in summary, jurisdiction, no suitable alternative remedy, conduct of the SSHD and other discretionary grounds.
- Jurisdiction. Clearly the BFCP cannot provide a suitable alternative remedy if the complaints now made do not fall within its terms of reference. I have sought to summarise these terms of reference in a succinct fashion which is no easy task given the diffuse and verbose language in which the BFCP is set out. What is clear that the procedure is not available for a complaint of maladministration that cannot be resolved in writing within a very short timescale, that is complex or that presents difficulties of law, factual ascertainment or those more suited to an adversarial dispute resolution process. Moreover, only modest claims for human rights breaches may be claimed and then only in exceptional circumstances and where such claims are within the overriding guidelines relating to speed of resolution, complexity and difficulty. Similarly, only modest and simple claims for the financial impact of delay may be claimed and then only in exceptional circumstances. The claims brought by each claimant falls outside the jurisdiction of the BFCP on each of these various exclusionary principles and are, in consequence, not within the procedure at all. This appeared to have been acknowledged by the SSHD's Customer Services Operations since it only sought to decide Yasin's complaint and, after deciding it, it withdrew its decision on the grounds that it had been made by mistake. The failure to consider Yusuf and Yakub's applications and the mistake it acknowledged in initially deciding Yasin's application both show that it appreciated that these complaints were outside its jurisdiction.
- No suitable alternative remedy. The claimants' claims are for damages for significant, frequent and prolonged breaches of article 8 that have involved disrespect for their personal and family lives over a ten-year period with the consequence that they have been deprived of employment opportunities, health care provision, the build-up of state pension entitlement, the ability to drive, obtain training and education, a full family life with each other, with Laila and with their five children or grandchildren and their partners. A further consequence has been the failure to provide decisions in their respective applications for ILR for ten years, stress, anxiety and being subjected to a decision-making process that has lost significant files, placed their applications in the wrong Directorates and many other acts of maladministration. These breaches of article 8 have caused them significant direct loss including legal expenses, pension entitlement, lost wages and to significant general damages. Much of this loss and damage is irrecoverable through the BFCP because it is outside its scope or because the procedure does not provide for disclosure, detailed consideration or the resolution of complex legal and factual issues.
- Conduct of the SSHD. The SSHD failed to comply with the disclosure and pleading obligations imposed by the judge granting the claimants permission to apply for judicial review. The nature of the disclosure that had been ordered should have provided the disclosure that was finally provided a few days before the substantive hearing. The claimants were therefore deprived of the opportunity of ascertaining the nature and extent of their claim for damages until a few days before the substantive hearing. The SSHD then admitted that it was responsible for maladministration without identifying what maladministration it was accepting it was responsible for, what its consequences were or what delay to the production of the decisions in issue it had caused as a result. The SSHD then invited the claimants to submit complaints to the BFCP which the claimants initially did but then withdrew because they were advised that the procedure was wholly inadequate to deal with their complaints. Undeterred, the SSHD then and without warning purported to decide Yasin's complaints without also attempting to decide those of Yusuf and Yakub. The decision in Yasin's case offered the derisory and contemptuous sum of £500 without any explanation of how that sum had been arrived at. The SSHD then instructed its counsel to submit that that decision had been withdrawn because it had been mistakenly given. Not explanation was provided by the decision-maker as to the nature of the mistake that had occurred or why the purported decision did not extend to Yusuf and Yakub's complaints or why such a derisory sum had been arrived at notwithstanding the extent and nature of the complaints being made.
- The SSHD has, therefore, already attempted to decide the claimants' complaints and has shown by its decision-making process that it provides an wholly inadequate remedy which is bound to be challenged so that no useful purpose would be served in re-opening that procedure. No costs would be saved and further delay would result.
- Other discretionary grounds. The claims now pursued are exceptional in their range, extent and value and it is in the public interest that those claims are dealt with in a judicial review claim and the decision is published both as a guidance for damages claims in this field in future cases and as a public notification of the SSHD's significant breaches of article 8. Furthermore, it would be unduly costly since the history of these cases shows that a restart of the judicial review claims would be inevitable and yet further delays would occur.
- Neither of the cases cited by the SSHD, and in particular MD (China), was relevant to the type of case that I am concerned with. Indeed, the suggestion that the use of the BFCP complaints scheme for these disputes was as appropriate as a suggestion was like suggesting that a fly was a satisfactory replacement for an elephant.
- For all the reasons set out above, the BFCP is not a suitable alternative remedy and the application to stay or dismiss these claims to allow that scheme to be used is dismissed.
P. Issue 15 - Human Rights Breaches
- This issue involves a consideration of whether the maladministration, errors of judgment, loss of documents, failures to answer correspondence and indifference to the plight of the claimants in living without LTR for a decade longer than they should have had to amounts to sufficiently significant breaches of the claimants' human rights to enable them to recover substantial damages for those breaches.
15.2. The law
- The claimants' claims for damages arise out of their claims for repeated failures of the SSHD, a public authority, to show respect for their individual private and family life. In ECHR terms, the claim arises out of article 8 and the meaning to be given to the three essential ingredients of the alleged failures – "private life", "family life" and "interference by a public authority" – must be given meanings that accord to the meanings ascribed to them by the jurisprudence of the ECHR which the Administrative Court is required to apply.
- In ECHR jurisprudence, the notion of private life is broad and not susceptible to exhaustive definition. In general terms, an individual's private life which the state must show respect for comprises his or her moral and physical integrity which includes his or her self-fulfilment, the formation and maintenance of relationships with others, self-fulfilment and the ability to develop as an individual without restraint or interference. In short, the protected right is the protection of the right of and the ability to develop self-fulfilment, personal autonomy, human dignity and freedom of thought, word and deed.
- The notion of family life is also broad and not susceptible to exhaustive definition. The right that is protected is the right of individuals to live together as a family, to develop and maintain family relationships and to be able to support and be supported by other family members and by the collective of close family members. The concept of family extends to all who constitute an individual's family. Any personal relationship, including unmarried partners, adopted children, step children and children in an informal relationship with an adult akin to a close blood relationship.
- The notion of the state showing respect for these rights is also somewhat nebulous. In general terms it involves the state or any public authority interfering with an individual's private or family life in a way that was not reasonably necessary in a democratic society for the protection of others or was not in accordance with the law. The interference may result from acts or omission to act. The state is permitted a wide margin of discretion or "appreciation" in deciding what it can or cannot do. Thus, failures to take steps, for example, to regularise an individual's status by way of citizenship or the right to reside within the territory of the state that an individual is entitled to does not constitute a failure to respect that individual's protected right merely because the action was delayed due to staff shortages resulting from a lack of resources. The state has limited resources and is permitted a wide margin of discretion as to how to allocate them. However, the state must allocate its resources in accordance with its own system of regulation and with reasonable fairness so that, for example, it should not deal with those waiting to use its scarce resources in a random order or in a way that gives preferential treatment in an arbitrary manner.
- In the context of the Said family and their claims in this case, these concepts may be readily crystallised. The state in the form of all those that the SSHD was responsible for was concerned with applications for the right to settle in the UK by three individuals whose applications for settlement were inherently bound up with the status of their wife or mother who was a British citizen with the right of settlement who was living in the UK and who had no right to live in any other country. The three individual claimants were seeking similar rights and were entitled to their applications to be dealt with as rapidly as was reasonably possible and in a manner that accorded with the law. This entitlement arose particularly acutely, in the context of their private and family life, because they were denied many of the necessary ingredients required to enable them to develop and maintain the basic freedoms inherent in those protected rights. They were not permitted to work whilst waiting for their applications to be determined, they could not open bank accounts, borrow money, obtain a driving licence to enable them to travel for work or pleasure, leave the country for family or recreational reasons, or earn sufficiently to enable them to develop their skills and complete their education and training or their business and home life. The resulting struggle to live their lives caused immeasurable harm to the development and maintenance of their life together as a family and with their partners, children and grandchildren. The stress created by the waiting and by the uncertainty and by the worry arising from the repeated unsuccessful attempts to regularise their status were clearly very considerable and extended over many years.
- In the case of Yusuf, the interference with his personal and family life remains uncertain since it is not yet known for sure whether or not he is to be deported. On his case, he was arbitrarily and unfairly threatened with deportation in a way and for reasons that were unlawful and erroneous. Until his status is finally resolved by either the grant of LTR or by deportation, the extent of the interference with his private or family life will remain uncertain. It is clear, however, that the delay before deportation proceedings were initiated and the manner in which they have so far been proceeded with both give rise to a substantial claim even if he is ultimately deported. To a much lesser extent, the same applies to Yakub and the delay in dealing with his settlement application and in its processing since until it is known whether or not he has been granted ILR, the extent of his claim remains uncertain.
15.3. Breach and liability
- The SSHD has characterised these claims as being claims for delay in deciding the claimants' leave applications and have summarised the causes of that delay as being failed applications for asylum and under the family exercise, the claimants' unlawful immigration status, serious backlogs of asylum cases and a lack of exceptional circumstances. The SSHD has also, somewhat dismissively, accepted that there was maladministration without identifying that maladministration or its consequences. These descriptions of the claimants' complaints are cursory, dismissive and wholly inaccurate and are further examples of its disrespect for the claimants' family and private life. The claimants' claims are in fact based on the extensive number of acts and omissions by the SSHD over the entire period between 2002 and the present. Each of these many acts and omissions amount individually to maladministration, many were unlawful, negligent, highhanded, thoughtless, arbitrary or dismissive and each showed disrespect to one or more of the claimants' private or family life. It is the case that the consequences of these acts and omissions included a collective and unlawful failure to provide the decisions by 20 December 2004 so that, in general terms, these were delayed by ten years. But that delay is not of itself the claim that is brought but the fact that, because of the delay, the claimants' immigration status remained unresolved, was unlawful and of a kind that significantly interfered with their private and family life directly as well as indirectly as a result of the stress, inconvenience, worry, uncertainties and emotional upheaval that this interference caused.
- The consequence is that the disrespect shown by the SSHD taken collectively or individually was of an extent and duration and whose adverse consequences were so significant that it gives rise to substantial breaches of the SSHD's obligation to respect each claimant's private and family life and hence to breaches of duties it was obliged to comply with. Each claimant has succeeded in establishing the SSHD's substantial liability to him for substantial and significant breaches of its obligation to him under the HRA to show respect for his private and family life.
Q. Issue 16 – Damages and their Quantification
- The issues of causation and quantification are difficult and extensive. This is because the breaches that have been identified in this judgment are extensive in number and extent, are of many different kinds, extend over a 13-year period starting with the initial failure to provide decisions to the claimants' ILR human rights claims in 2003 in conjunction with Laila's British citizenship decision and have caused a large variety of adverse consequences. The claim is, therefore, for general damages and for a variety of financial losses which, in Yusuf and Yakub's cases will continue to mount until their applications are finally determined and their rights of appeal and challenged are exhausted.
- The SSHD contends that any award of damages must be modest. That contention overlooks a number of significant issues. Firstly, there is no right to damages for maladministration and the claimants have no other cause of action available to provide them with a remedy for all the unlawful acts and omissions that have occurred. Secondly, one purpose of the award of "just satisfaction" is to provide a remedy for breaches of the ECHR which are not otherwise remediable. Thirdly, the nature and extent of the SSHD's breaches and of their adverse consequences are unprecedented and the direct and indirect loss they have caused is also unprecedented. Finally, the economic consequences are very significant. These include extensive legal expenses incurred over the entire period of complaint for which there has been no recovery and no liability to reimburse. They also include extensive loss of income over a ten-year period, loss of state pension rights due to a large contributions deficit, loss of the ability to accrue private pension rights, loss of welfare benefits relating to their employment status, parental status, health and social care and a range of other direct and indirect losses which, if not too remote, are also extensive.
- I do not propose to examine or analyse further in this judgment the breaches, the direct and indirect losses caused by those breaches that are recoverable as damages or the quantification of those damages. All these matters have been held over until the second stage of this trial. Suffice it to conclude by confirming that the findings of breach that are to govern the issues of causation and damages are to be found in and confined to this judgment.
- In conclusion, therefore, each claimant has succeeded in establishing liability and are entitled to substantial damages. The liability is identified in this judgment and covers breaches of the SSHD's obligations owed to each claimant over the entire period from 20 December 2004 until the present time and, in the case of Yusuf and Yakub, continuing that are identified in this judgment. All issues of causation, damage and damages are held over to a second trial unless damages can be agreed by the parities.
R. Issue 17 – Procedural Directions
- The procedural directions dealing with interim payments for costs and for damages, the preparatory procedural steps to be taken prior to the trial of causation and damages and the nature and timing of that trial and the timetable to give effect to these steps is set out in the schedule to this judgment.
S. Issue 18 – Summary of Conclusions and Order
- The order made in consequence of this judgment is set out in the schedule to this judgment and a summary of its conclusions in a third schedule to this judgment.
- The overall conclusions are that:
(1) Yasin's estate is entitled to an order that:
(i) Subject to complying with the requirements of the CPR, an order that this claim be carried on in the name of Laila;
(ii) There be no order on his claim for the judicial review of his claim for a mandatory order save as to costs;
(iii) It be declared that the decision granting him ILR should have been made on or before 20 December 2004 and that the resulting delay from that date until 9 October 2014 in providing it was unlawful;
(iv) His claim for damages succeeds; and
(v) All issues of causation and quantification are to be tried in a second action if not agreed.
(2) Yusuf is entitled to an order that:
(i) There be no order on his claim for the judicial review of his claim for a mandatory order save as to costs;
(ii) The SSHD's decisions dated 25 September 2015 that he is liable to be deported and 13 November 2015 in its entirety are both set aside;
(iii) Any subsequent decision must be made in accordance with the terms of this judgment and the procedural directions set out in the first schedule;
(iv) It be declared that the decision as to his application dated 1 September 2004 should have been made on or before 20 December 2004 and that the resulting delay from that date until 13 November 2014 in providing it was unlawful;
(v) His claim for damages (including any continuing damages recoverable for the breaches established by this judgment) succeeds; and that all issues of causation and quantification are to be tried in a second action if not agreed.
(3) Yakub is entitled to an order that:
(i) There be no order on his claim for the judicial review of his claim for a mandatory order save as to costs;
(ii) The SSHD's decision dated 9 October 2014 be set aside;
(iii) Any subsequent decision must be made in accordance with the terms of this judgment and the procedural directions set out in the first schedule;
(iv) It be declared that the decision as to his application dated 1 September 2004 should have been made on or before 20 December 2004 and that the resulting delay from that 20 December 2004 until 9 October 2014 in providing his decision was unlawful;
(v) His claim for damages (including any continuing damages recoverable for the breaches established by this judgment) succeeds; and
(vi) All issues of causation and quantification are to be tried in a second action if not agreed.
HH Judge Anthony Thornton QC