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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
||Royal Courts of Justice
Strand, London, WC2A 2LL
||12th November 2014
B e f o r e :
LORD JUSTICE AIKENS
LORD JUSTICE DAVIS
LORD JUSTICE CHRISTOPHER CLARKE
|| IN THE MATTER OF APPLICATIONS FOR PERMISSION TO APPEAL AGAINST THE DISMISSAL OF CLAIMS FOR JUDICIAL REVIEW
||- and -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
||IN THE MATTER OF APPLICATIONS FOR PERMISSION TO APPEAL AGAINST THE REFUSAL OF PERMISSION FOR JUDICIAL REVIEW
||- and -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
CASE NUMBER: C4/2013/1851
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
||- and -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Transcript of the Handed Down Judgment of
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HUGH SOUTHEY Q.C. and PAUL TURNER (instructed by Barnes Harrild & Dyer Solicitors) for the Applicants
PAUL TURNER (instructed by Barnes Harrild & Dyer Solicitors) for the Appellant.
JULIE ANDERSON (instructed by Treasury Solicitors) for the Respondent.
Hearing dates: 2nd & 3rd October 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Davis :
- These are all so-called "legacy" cases. Five of them are conjoined applications for permission to appeal from an order of Simler J dated 20 December 2013 whereby she dismissed the applications of SH and NA for judicial review and refused to grant AN, SJ and BA permission to apply for judicial review:  EWHC 4113 (Admin). The sixth case is an appeal from an order of 25 June 2013 of Mr Justice Lewis refusing the applicant, BA (Ethiopia), permission to apply for judicial review:  EWHC 3334 (Admin).
- Elias LJ granted permission to appeal in the case of BA (Ethiopia) on 18 February 2014. In the other five applications, the court (Underhill LJ and Sir Stanley Burnton) after an oral hearing on 15 July 2014 directed that the five applications for permission to appeal, in limited respects, should be listed to be heard together with the appeal in BA (Ethiopia). It was made clear in the judgment of Underhill LJ, with whom Sir Stanley Burnton agreed, that he had reservations as to the viability of the argument being advanced; but the court left the points to be decided at the same time as the hearing of the appeal of BA (Ethiopia) and so did not itself grant permission. The court on that occasion also rejected as not arguable certain other grounds of appeal sought to be advanced, and so refused permission to appeal on those aspects.
- The common issue, and the principal (although not sole) issue, arising on these various applications and this appeal can be formulated in this way: was there an obligation, in the form of a commitment, on the part of the Secretary of State to "conclude" cases falling within the legacy programme relating to asylum cases either by the grant of leave to remain or by effecting the removal of the applicant from the United Kingdom? The Secretary of State says there was and is no such commitment. The applicants and appellant say there was and is: accordingly, they say, because none of the applicants and appellant has been removed each is entitled to, or at least to be considered for, a grant of leave.
- The principal argument on the point was advanced by Mr Hugh Southey QC (who had not appeared below) leading Mr Paul Turner (who had appeared below) for the five applicants. Mr Turner also appeared for the appellant, as he had below. He adopted Mr Southey's oral arguments and advanced certain others specific to the case of the appellant. Ms Julie Anderson appeared for the Secretary of State.
- The legacy programme or scheme has been fully described in a number of well-known cases and is also the subject of full description in the judgment of Simler J below. It therefore calls for only the briefest outline at this stage. Suffice it to say, it was set up to deal with the vast backlog of cases that had by 2006 been identified. In respect of applications made prior to 5 March 2007 which had not been disposed of several hundreds of thousands responsibility for dealing with such cases was transferred to the Casework Resolution Directive ("CRD"). Many of those potentially within the programme were liable to removal, having previously exhausted their appeal rights. Many (although by no means all) sought thereafter to lodge fresh submissions and representations. By mid 2011 there were still over 100,000 cases remaining to be disposed of: albeit a very significant proportion of those related to cases where contact had been lost with the applicant or where there were other difficulties, causing such cases to be placed into what was called the controlled archive. In July 2011 the remaining cases and those in the controlled archive were transferred for resolution by a new unit called the Case Assurance and Audit Unit ("CAAU").
- Each of the five applicants came to the United Kingdom from Iran. The appellant came to the United Kingdom from Ethiopia. The background facts are fully set out in the judgments below. The relevant details, for present purposes, can be shortly summarised as follows.
(1) SH (Iran)
- So far as SH is concerned, he arrived in the United Kingdom on 30 January 2003. His claim for asylum was refused and his appeal thereafter dismissed on 24 September 2003. Permission to appeal was refused in January 2004. He did not leave the United Kingdom at that time.
- On 21 July 2010 the applicant received a letter from the CRD confirming that his case was within the legacy programme being administered by the CRD and requesting certain information: which was supplied. Thereafter he left the United Kingdom for the Netherlands (to look for his family, as he was to say) but was returned on 17 February 2011 by the Dutch authorities. He was re-interviewed and his renewed asylum claim was again rejected by decision letter of 4 April 2011. The letter concluded: "Therefore, you have no further basis for stay in the UK and the arrangements will now be [made for your removal] from the country". Formal notice of refusal of leave to enter, and the proposal to give removal directions, was given on 16 May 2011.
- A pre-action protocol letter, raising various contentions by reference to the legacy programme, was sent by the applicant's solicitors on 23 November 2011. It concluded by requesting that the Secretary of State "makes a decision on our client's outstanding application under the legacy programme that has now been concluded and grants our client indefinite leave to remain (ILR) in line with that scheme".
- By letter of 21 December 2011 the CAAU responded. Among other things it said "CAAU will resolve cases by either removing individuals from the United Kingdom or granting them leave to remain in accordance with existing law and policy". The letter went on to note that there was no record of an outstanding application in SH's case and the position was maintained that he had no basis of stay in the United Kingdom.
- Thereafter the claim form was issued on 19 January 2012. It claimed that the Secretary of State had unlawfully failed to make a decision on the applicant's "outstanding application under the legacy programme" and was entitled to a grant of indefinite leave to remain. Permission was subsequently granted.
(2) NA (Iran)
- The applicant arrived in the United Kingdom from Iran on 28 December 2005 and claimed asylum shortly thereafter. His application was refused on 17 February 2006 and an appeal was dismissed on 24 May 2006.
- On 20 April 2009 he submitted fresh representations. These were rejected on 10 February 2011, albeit it was internally noted that he could not then be removed. On 5 July 2011 further representations were submitted which were rejected on 14 March 2012. It was stated that the applicant had no basis of stay in the United Kingdom and should make arrangements to leave. On 26 November 2009 the CRD had indicated that his case was being dealt with as part of the legacy programme. Fresh solicitors sent a pre-action protocol letter on 28 May 2012, claiming a decision on the application under the legacy programme and the grant of ILR "in line with that scheme".
- The claim form was issued on 8 July 2012, challenging the failure to make a decision on his outstanding application under the legacy programme. Permission was subsequently granted.
(3) AN (Iran)
- The applicant arrived in the United Kingdom from Iran on 17 February 2003 and claimed asylum. His application was refused but he was granted exceptional leave to remain until 12 June 2005. Shortly before that date he made an application for further leave to remain. That was refused on 27 April 2007 and an appeal was dismissed in August 2007.
- On 10 May 2010 he made a fresh claim, which was rejected on 18 August 2010. At that date an internal note was made that the case could not proceed to the applicant's removal as he was an undocumented Iranian.
- On 8 December 2010 fresh solicitors asked the Secretary of State to consider the applicant's case under the legacy programme. Eventually on 28 November 2011 the CAAU wrote saying that the case had been allocated to it from the CRD and, as with other such letters, among other things saying that CAAU would resolve the cases by either removing individuals from the United Kingdom or granting them leave to remain in accordance with existing law and policy.
- The claim form was issued on 26 March 2012. It challenged the failure to make a decision with regard to the applicant under the legacy programme.
(4) SJ (Iran)
- The applicant arrived in the United Kingdom from Iran on 18 December 2006. He claimed asylum on arrival and claimed to be a minor. His claim was refused on 22 June 2007, but he was granted Discretionary Leave to Remain until he was 17 and a half years of age.
- He sought an extension of his leave to remain on 31 March 2008, which was refused on 4 June 2011, an appeal being dismissed on 9 August 2011.
- Thereafter his solicitors sent a pre-action protocol letter on 28 November 2011 requesting a decision under the legacy programme. By letter of 10 January 2012 that CAAU responded by a letter replicating in the material respects the letters sent to the other such applicants.
- The claim form was issued on 25 January 2012. It challenged the failure to make a decision on his outstanding application under the legacy programme. Thereafter further representations were made and rejected and the grounds were amended.
(5) BA (Iran)
- The appellant travelled to the United Kingdom from Iran and claimed asylum on arrival on 4 December 2006. His application was refused on 25 January 2007 and an appeal dismissed in May 2007. He made two further applications, in 2008 and 2011, purporting to be fresh claims, both of which were refused.
- In July 2012 he instructed fresh solicitors. A pre-action protocol letter was sent on 24 July 2012, claiming the grant of leave under the legacy programme.
- On 28 August 2012, the CAAU responded in terms, in this regard, corresponding to those contained in the letter to SH, and maintaining the position that BA had no basis of stay in the United Kingdom.
- Thereafter the claim form was issued on 13 September 2012. It was said that the Secretary of State's ongoing failure to conclude his case and make a decision under the legacy programme and the failure to grant him leave was unlawful.
(6) BA (Ethiopia)
- The appellant arrived in the United Kingdom from Ethiopia in August 2004, being granted six months leave to enter as a visitor. On 23 September 2004 she claimed asylum. Her application was refused and an appeal was dismissed in March 2005.
- On 15 February 2010 the appellant made a fresh claim, which was refused on 16 September 2010. In the meantime on 18 February 2010 the CRD wrote to say that her case was being administered under the legacy programme. Further fresh representations were made, which were refused on 1 March 2011.
- On 29 April 2011 the appellant's solicitors wrote requesting that her case now be considered under the legacy programme. There was no response and a pre-action protocol letter was sent on 9 December 2011. Eventually, following the issue of proceedings, the CAAU responded on 10 January 2012. As with other applicants, the letter stated that the CAAU would resolve cases by either removing individuals from the United Kingdom or granting them leave to remain in accordance with existing law and policy. It was said that in the absence of an outstanding application or further submissions the CAAU maintained the position that the applicant had no basis of stay in the United Kingdom.
- The extant judicial review proceedings were amended. The appellant claimed a decision on her application and the grant of ILR. There was an oral hearing of the renewed application for permission before Burton J on 18 July 2012 where statements were given by counsel then appearing for the Secretary of State to the effect that BA's case was to be reviewed, the judge indicating his view that six months should suffice for that purpose. He stayed the proceedings for a period of 8 months accordingly.
- There was no such reconsideration or decision within that time frame and the matter, with further amendments to the grounds in the meantime, was reinstated. Permission was then refused by Lewis J on 25 June 2013.
The legal background
- I have already referred, in summary, to the legacy programme. A full description of its rationale and inception, and its subsequent operation, is to be found in the judgment of Simler J and in various other authorities to which she refers.
- There is also a full discussion by Simler J of the procedures applying to cases decided under the Immigration Rules and outside the Immigration Rules. Again, I do not for present purposes need expressly to set out the applicable and all too familiar provisions of paragraph 353B (which replaced paragraph 395C) of the Immigration Rules or Chapter 53 of the Enforcement and Instruction Guidance as revised from time to time: although these of course potentially can have a very important part to play in such cases. These provisions too are fully dealt with in the judgment of Simler J.
The principal issues on the applications
- The principal argument, as advanced by Mr Southey and supported by Mr Turner, depends on identifying a policy or commitment, binding on the Secretary of State, to "conclude" a case within the legacy programme either by removing the applicant or by granting him or her some form of leave to remain. But I think it is perhaps convenient to identify some aspects which these applications and this appeal are not or, in the light of authority, cannot be about.
- First, the legacy programme was never designed to be and was never stated to be an amnesty. On the contrary, the converse was from the outset publicly stated by the Secretary of State. Mr Southey rightly accepted as much. As has been decided, the legacy programme was to be regarded as an operational programme only.
- Second, mere delay in dealing with a case falling within the legacy programme cannot of itself give rise to any expectation or entitlement that relief should be granted as though the case had been dealt with with what is asserted to be reasonable expedition. Delay and maladministration (if any) are, it must be emphasised, not to be equated with unlawfulness. There have been numerous cases where the courts have, rightly, rejected an argument by a person within the legacy programme to the effect that: "If only my case had been dealt with earlier, as it should have been, I would have been granted leave to remain of a certain kind". The exceptional situation that arose in cases such as Rashid  INLR 550 and R(S) v Secretary of State for the Home Department  INLR 450 requires that "conspicuous unfairness" amounting to illegality, needs to be shown, going above mere maladministration or delay.
- Third, and reflecting the second point, there is, in the ordinary way, no occasion, in a context such as the present, for some kind of separate application of the doctrine of legitimate expectation. Put simply, the relevant legitimate expectation is that an applicant under the legacy programme will have his case treated in accordance with the law and policy applicable at the time of the relevant decision. (I will come on in due course to a distinct argument on this point advanced by Mr Turner in the case of BA (Ethiopia).)
- Fourth, there is no room for argument that these applicants and this appellant are to be treated as entitled to a grant of leave to remain simply because they otherwise (so it is said) will be left in a state of indefinite limbo. True it may be that there have been times when (for example) it has not proved possible for undocumented Iranians to be removed to Iran. But it does not follow that will always remain the case; and, as found as a fact by Simler J, there at no stage has been in existence a policy that those whose removal from the United Kingdom cannot be enforced should for that reason alone be granted leave. In any case, to the extent that Mr Southey sought to ghost such an argument in his oral submissions, he is precluded from doing so by refusal of permission on this ground by this court at the earlier hearing.
- Fifth, there is no room in the present cases for broad assertions that like cases must be treated alike which Mr Southey dressed up, more formally, as an application in the present context of the public law principles of consistency and of the need to secure avoidance of arbitrariness in decision making on the part of public bodies. But cases in the legacy programme do not require uniformity of outcome simply because they are in the legacy programme; indeed, that would go against the general approach that such cases are ordinarily to be decided on the law and policy operative at the time of the individual decision and by reference to the circumstances of the individual case. Again, to the extent that Mr Southey sought to ghost this point in his oral submissions, it is not open to him to do so by reason of the prior refusal of permission on this ground.
- Sixth, there is no general obligation on the Secretary of State to issue removal directions when he decides to refuse leave to remain: Patel v Secretary of State for the Home Department  AC 651. The Secretary of State is in this regard also entitled to look to the individual departing voluntarily before enforcing removal.
- Against those general considerations, I turn to the specific points advanced on these applications and this appeal.
The judgments below
(a) The judgment of Simler J
- The judgment of Simler J is impressively thorough and well marshalled.
- She referred to a number of relevant decisions, including the very full decision of King J in Geraldo  EWHC 2763 (Admin): a decision from which leave to appeal was refused by a constitution of this court (Davis LJ and Ryder LJ:  EWCA Civ 363). She rightly found the legacy programme to be an operational programme only. She among other things held (at paragraph 38):
the policy applicable to the cases in the legacy programme to be applied by CRD (and later CAAU) remained at all material times the general law as it stood at the time of consideration of an applicant's case in the same way as elsewhere in UKBA
. The legacy programme created no new rights."
I agree with that.
- She then went on to deal with the argument that there was a commitment on the part of the Secretary of State to "conclude" a case an argument which, as she noted, had also been raised in Geraldo in the sense either of effecting removal or of granting leave to remain. She considered the evidence adduced before her on that point and the submissions advanced, which in substance replicated arguments unsuccessfully advanced on this point in Geraldo. She found (paragraph 43) that the view as to what constituted a "conclusion" changed over time, particularly once the work on legacy cases was underway and practical issues began emerging. She also noted that "removal" encompassed voluntary and assisted departures. She accepted (paragraph 44) that the "aim" was to deal with legacy cases in five years or less, bringing them to a conclusion. She then said this:
"45. However, there is a difference between an aim or aspiration to conclude unresolved cases and an obligation (whether as a matter of legal obligation or by reference to a policy) to do so. To succeed on this argument, the Claimants must establish a commitment the breach of which amounts to a public law error. The evidence does not establish anything more in my judgment, than an aim to consider every case and make a decision in every case that was capable of being decided. There was no binding commitment made by Dr Reid when the Legacy Programme was established, whether to Parliament, the public, or to each legacy applicant to conclude these cases, still less to do so by any particular date (see paragraph 102 Geraldo and following). Nor is there any material to establish a binding commitment or policy adopted to do so at any later stage.
46. Since inclusion of a case within the legacy programme gave rise to no new rights or additional expectation of the grant of leave, the only expectation an individual could have is to have his or her case considered in accordance with current law and practice, and if leave was not granted removal could therefore be expected. Accordingly, it is difficult to see why once a person has received a decision refusing the grant of leave and is therefore to be removed, but has not actually been removed, that person's case under the legacy programme should not be regarded as concluded by such a decision."
She went on at a later stage to say this:
"61. Although the Legacy Programme had, as its intention, the sorting out of the backlog of cases by granting some sort of leave or removing individuals, that aim or rationale does not entail that a person neither granted leave nor removed has not yet had a "legacy decision" or a concluded case for these purposes.
62. The purpose of the legacy programme was to review the backlog and to divide cases into those who should be given leave to remain from those who ought to be removed. Moreover, since the legacy programme was operational only and gave rise to no additional rights or expectations of the grant of leave, if leave was not granted following a review, removal could be expected. But as the court held in Che, there is a difference between a decision granting leave and a refusal of leave resulting in a removal decision and the commencement of the removal process. Inevitably, the process for removal is not instantaneous and may be lengthy. However, it begins with notification that leave has not been granted and that removal will therefore take place. At this point, an individual so notified has received a valid legacy decision: his case has been reviewed, it has been concluded that leave is not appropriate, so that he has had his legacy decision, and the removal process, starting with notification has begun. The mere fact that such an individual has not been removed (even after a number of years), does not alter this position and mean that his case under the legacy programme has not been concluded. Any delay in enforcing the individual's removal gives rise to no legal rights or unlawfulness the individual is not only free to, but legally obliged to, leave the UK voluntarily."
(b) The judgment of Lewis J
- Lewis J, in the case before him, dealt with the point more shortly (understandably so, given that he was dealing with a renewed application for permission). But his concisely expressed reasoning on this particular point was to similar effect. He said this (at paragraph 23):
"23. The position, in my judgment, is this. What the Defendant has to do is decide to grant leave, which she has declined to do, or seek to effect removal. She has started that latter process quite clearly in the letter of 16 September 2010 because she has decided as a starting point that there is no reason why removal should not go ahead. So, in my judgment, it is semantic to try and say there has to be a conclusion, and conclusion means removal. A more realistic approach would be there has to be a decision on the relevant criteria, and either the grant of leave or the beginning of the process to effect removal. And, in my judgment, on the material before me, the Secretary of State is in the process of doing that last stage."
- I agree with the conclusions and essential reasoning both of Simler J and Lewis J and would uphold their decisions.
- Mr Southey made the initial point that where there is a lawful published policy then an individual to whom the policy relates has the right to expect his case to be considered under that policy; and if the executive is to depart from that policy it must provide a suitably cogent justification for doing so. I have no difficulty with that submission in general terms.
- The initial problem as I see it, for the argument, is quite simply that there is no policy in the form of conveying a commitment of the kind Mr Southey advances.
- Mr Southey took us through the statements of Dr Reid, then Home Secretary, made in the House of Commons on 19 July 2006 and 25 July 2006 and to various other witness statements and materials. These had all been considered by King J in Geraldo. The conclusion of King J, on the evidence, was that the various statements and other materials relating to the announced legacy programme gave rise to no policy as such at all. Rather, as he said at paragraphs 102 and 103 of his judgment:
"102. I find it quite impossible, on any objective reading of those statements, bearing in mind the context in which they were spoken (a Ministerial statement setting out a number of aims and objectives for the new UKBA) to read such an unambiguous binding commitment or promise to 'legacy individuals' into Dr Reid's words. At most, in my judgment, they were aspirational, setting out a clear declaration of an objective namely an aim to deal with the unresolved cases within five years or less but nothing more.
103. It is significant in this context that the claimants have chosen not to pursue their claims based on 'legitimate expectation'. Such a claim could not begin to be made out absent evidence of a clear unambiguous statement of practice or promise from which it would be contrary to principles of good administration for the Minister to resile, absent good reason to do so (see Laws LJ in R (Nadarajah) v SSHD  EWCA Civ 1363, at paras 68, 69) which evidence in my judgment is clearly absent here. The only legitimate expectation which these claimants had was that their cases be determined by the current law and policy as at the date of determination and this is what each obtained."
Those findings were endorsed by the Court of Appeal in refusing permission to appeal. I would approve the decision of King J. Indeed, it would be surprising if the decision had been otherwise. It would connote that, if actual removal were not capable of being effected, the Secretary of State may have inflexibly committed himself to a position whereby applicants are necessarily to be granted leave to remain which they might not otherwise have got under the Rules (including paragraphs 395C and then 353B and the holistic approach there applicable). Any other conclusion would also not be consistent with Dr Reid's express statements to the House that there would be no amnesty and that "all cases will be dealt with on their individual merits". I would also take the opportunity of expressing my respectful agreement with the judgment of the Extra Division of the Court of Session (Inner House) on this point in the case of DM v The Secretary of State for the Home Department  CSIH 29.
- Simler J thus was correct to hold that the legacy programme was an operational programme designed to deal with the backlog and that cases handled within it were to have applied to them the same generally prevailing law, policy and guidance in force at the date of the decision as applied to the generality of asylum and immigration cases. There was and is no separate or discrete policy or availability of a special legitimate expectation argument applicable to legacy programme cases. Further, she (as did Lewis J) plainly considered on the facts that there had been no such delay on the part of the Secretary of State in dealing with the cases as to require the intervention of the court.
- Mr Southey sought to say that Geraldo was distinguishable: in that, he said, it was only concerned with whether there was a policy in force up to 19 July 2011 (or 25 July 2011) and with whether there could properly be a grant of discretionary leave to remain as opposed to indefinite leave to remain. However, as Ouseley J pointed out in R (Jaku, Prenga and Khaled) v Secretary of State for the Home Department  EWHC 605 (Admin), the observations of King J in paragraphs 82 to 107 of his judgment in Geraldo have a "broader significance" as indeed they do.
- I would, in fact, draw attention to the entire decision of Ouseley J in Jaku (a judgment subsequently, and justifiably, described by another constitution of this court as "admirable": see RN (Sri Lanka) v Secretary of State for the Home Department  EWCA Civ 938). In particular, for present purposes, I would for myself endorse what he said at paragraph 6 (which was also specifically approved in RN (Sri Lanka):
"6. At the heart of much of the litigation over the years have been eventually largely fruitless and in my judgment misconceived attempts by Claimants to show that there was a special and more favourable policy which should be applied to those in the Legacy Programme, derived from a target or aim as to the date by when decisions would be made. This target then was elevated into a legitimate expectation; missing it was said to create unlawful delay such as to create an historic injustice, leading to arguments that particular forms of leave should be granted, that policies should be treated as frozen, that particular periods of residence should be given great weight, all deriving from a misreading of policy and especially of alleged policy documents at a level below the EIG."
- There are numerous other recent authorities which are consistently to the effect that there is no special or more favourable "policy" applicable to legacy programme cases. Most are first-instance decisions and so not binding on us. But, as will be gathered, I would approve the approach taken in those cases. In any event, they are in substance confirmed by the Court of Appeal decision in RN (Sri Lanka). At paragraphs 24 and 25 of his judgment Maurice Kay LJ, with whom Floyd LJ and Sharp LJ agreed, said this:
"24. The first point to note about the Legacy Scheme is that it did not confer additional substantive rights on the Legacy cohort. Its purpose was administrative and organisational. It bore no resemblance to an amnesty: see Geraldo v Secretary of State for the Home Department  EWHC 2703 (Admin), at paragraph 40 (King J). The substantial first instance jurisprudence on the Legacy Scheme was recently and admirably reviewed by Ouseley J in Jaku v Secretary of State for the Home Department  EWHC 605 (Admin)
25. To a significant degree, reliance on the Legacy Scheme in this case reflects that misconception. The reality is that if a legacy case was being considered at a time when Paragraph 395C was in force, it was applied. If consideration came after the repeal of Paragraph 395C, it was not applied. Absent other features bringing a case within the Rashid principle (and, as I have held, there was none in this case), being a legacy case conferred no particular entitlement on the appellant and he cannot build a claim of entitlement to consideration under Paragraph 395C on the mere fact of his having been within the legacy cohort."
- That approach is, in my judgment, of itself fatal to Mr Southey's present argument. But there are other reasons too on which I would decide against his arguments.
- The first lies in the difficulty in ascertaining from where the "policy" (so-called) to conclude derives. The word "conclude" for this purpose, is not to be found in the statements of Dr Reid or in the paper lodged in the library of the House of Commons. The emphasis there is on "dealing with". Mr Southey nevertheless sought to derive it from the various other subsequent statements made: which, it is true, sometimes do refer to the aim being to conclude matters in the form either of achieving removal or of granting leave to remain. But, quite apart from the point that there is in any event no separate policy as such, I do not see that these various subsequent statements can have that effect. They are subordinate to, and do not displace, what was initially announced: which laid out an aspirational operational programme with no commitment as to the "conclusion" of cases. Here too I agree with King J in Geraldo and with Simler J. I also repeat in this regard that, on the evidence, Simler J (at paragraph 50) found as a fact that no general policy or practice had been identified or established by the claimants to the effect that persons whose removal from the UK could not be effected should for this reason alone be granted leave.
- The second, no less fundamental, difficulty relates to Mr Southey's core argument that "conclusion", for these purposes, means either removal or the grant of leave.
- The argument suffers at the outset from the weakness that no specific time frame for "conclusion" can be identified by Mr Southey in the light of the conclusion in Geraldo that no commitment to a specific time frame was ever made (be it 19 or 25 July 2011). Further, it has to confront the not insignificant cohort of cases where, even where a decision to remove is made, it cannot be carried into effect because, for instance, the applicant has absconded (and there are other kinds of case posing such difficulties). Such factors, and an assessment of the evidence before him, led King J in Geraldo to hold that there could be no obligation to grant leave to remain in cases where removal could not be achieved. Mr Southey said that such a conclusion went against the "very rationale" of the legacy programme. In my view it does no such thing.
- As Ouseley J pointed out in Jaku (agreeing nevertheless with the fundamentals of Simler J's own reasoning in this regard) a case technically may remain in the legacy programme until leave is granted or departure occurs. But that is not material. The point is that the aim was to make a decision in every such case which could be decided: but there was no policy to effect either actual removal or the grant of leave to remain, let alone by a particular date. The focus is thus on the making of the decision (if voluntary departure has not happened in the interim), not on whether removal or a grant of leave then occurs.
- As has been pointed out by Mr Ockleton sitting as a deputy High Court judge in R (Che) v Secretary of State for the Home Department  EWHC 2220 (Admin), being a case to which Simler J had herself referred, it is not to be said that the purpose of the legacy programme was to grant leave to remain to all those not actually removed; it can equally be said that the purpose was to remove all of those to whom leave to remain was not granted. I also agree with his statement (at paragraph 27) that: "Although the legacy programme had as its intention the sorting out of the backlog of cases by granting some sort of leave or removing individuals it does not follow that a person neither granted leave nor removed has not yet had a legacy decision". As he further went on to point out, where an individual has been notified of an (adverse) legacy decision the initiation of a removal process has, in effect, started.
- In my view, overall, the content of the contemplated "conclusion" simply cannot have either the meaning or effect which Mr Southey seeks to ascribe to it: even assuming contrary, in my view, to the true position that there was in the first place a commitment binding on the Secretary of State to "conclude" such cases. Indeed, the implications of Mr Southey's argument are illustrated by his remarkable assertion that the applicant SH is entitled to avail himself of the asserted "policy to conclude" notwithstanding that SH had in fact removed himself from the United Kingdom before being returned by the Dutch authorities.
- For these reasons I would refuse permission to appeal on all five of the applications. I do not think the points raised give rise to any realistically arguable grounds.
- The same result must follow in the appeal in BA (Ethiopia) so far as these grounds are repeated.
- Mr Turner, however, had an additional ground in the case of BA (Ethiopia). He referred to the letter of the CAAU to the applicant's solicitors of 10 January 2012. He then referred us to the transcript of the argument before Burton J which, he said, confirmed or conveyed an explicit representation, on which the applicant was entitled to rely, that her case would be considered and a decision given within six months. I was not entirely sure that Ms Anderson's riposte in reliance on the fact that the letter of 10 January 2012 had referred to "in accordance with existing law and policy" provided a complete answer to all this. But in the event it seems that there has in fact been in the interim further correspondence on potential further matters about the position of BA whose case is plainly under further consideration; and in the result I do not think that this point can succeed or that there is any requirement for this court to interfere.
- For the above reasons I would refuse these applications and dismiss this appeal. Simler J and Lewis J were correct.
- I add a footnote. The position with regard to legacy cases on these particular points is now to be taken as laid to rest. There have been many decisions in the last two years on the salient points, all of which are in substantial accord. There is no separate legacy "policy". There is no basis for relying on delay as, in itself, a ground for obtaining leave to remain. There is in the ordinary case no relevant legitimate expectation, other than that the case will be considered on applicable law and policy at the time the decision is made. There is no basis for saying that there is a commitment on the part of the Secretary of State to "conclude" a case either by effecting actual removal or by granting leave to remain.
- I would also take the opportunity of endorsing what was said in yet another first instance decision, that of Philip Mott QC sitting as a deputy High Court judge in R (Mohammed) v Secretary of State for the Home Department  EWHC 1405 (Admin), by judgment delivered on 8 May 2014. He referred to the root argument in that case being as here premised on the proposition that the legacy programme contained a commitment to "conclude" each case and that "conclusion" meant either removal or the grant of indefinite leave to remain (paragraph 17). Following Geraldo, Jaku and other such cases he rightly rejected the argument. Having done so he said this (paragraph 22):
"22. In the end, the Claimant's case stands or falls on the mantra that legacy cases are special, that effectively the only two choices are removal or indefinite leave to remain, and that anyone who happens to have been accepted as a legacy case is entitled to benefit from that special treatment. That has been comprehensively rejected in this Court, for reasons which have been extensively set out in earlier judgments."
- I agree with those observations. If claims continue to be presented to or pursued in the Administrative Court in legacy cases in substance replicating the various arguments which have now been comprehensively rejected by the courts, they can ordinarily expect to be met with appropriate close scrutiny and robust decision making, at an early stage.
Lord Justice Christopher Clarke:
- I agree.
Lord Justice Aikens:
- I also agree with the judgment of Davis LJ. I wish particularly to underline what he has said at -. Judges will firmly dismiss any further claims in legacy cases that attempt to repeat arguments (however disguised) that the courts have already been comprehensively rejected. But the point goes further. Attempts to advance such claims are a waste of public money and scarce judicial resources. All those advising clients have a duty to examine any further potential legacy claim with the closest scrutiny.
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