Case No: CO/10427/2012
Neutral Citation Number: [2013] EWHC 1891 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/07/2013

Before :

HIS HONOUR JUDGE ANTHONY THORNTON QC
Sitting as a Judge of the High Court
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Between :

	R (on the application of)
Mark Prenga
	
Claimant	
	– and –
		
	Secretary of State for the Home Department	Defendant	

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Ms Ripon Akther (instructed by Malik and Malik) for the Claimant
Mr Richard Moules (instructed by the Treasury Solicitor) for the Defendant

Hearing date: 10 May 2013
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Judgment
His Honour Judge Anthony Thornton QC : 
Introduction
1.	In this renewed application for permission to apply for judicial review, Ms Akther applies on behalf of the claimant ("C") to challenge the decision of the defendant ("D") dated 3 August 2012 refusing the claimant's representations dated 3 August 2012 to grant the claimant leave to remain or to treat them as a fresh claim. 
2.	The relevant immigration chronology in this case is as follows[1]: 
(1) 22. – 23.4. 1999 C arrived in England and claimed asylum 
(2) 10.1.2001 Asylum claim refused – ELR granted until 22.5.2001
(3) 19.2.2003 C applied for extension of his leave
(4) 3.2.2005 Application refused
(5) 2006 Then Home Secretary made a commitment that UKBA 'must deal with the legacy of unresolved asylum cases no later than the summer of 2011". A 'conclusion' generally understood to mean a grant of ILR or removed from UK. (CI of Borders and Immigration in March – July 2012 report). 
The description of such cases as "legacy cases" is taken from the Home Secretary's House of Commons statement. The CRD was set up soon afterwards within the UKBA to process "the legacy of unresolved asylum cases".
(6) 5.3.2007 Cut-off date for asylum applications leading to referral to CRD legacy process
(7) April 2007 Amendments to Chapter 53 of the EIG
(8) August 2009 Amendments to Chapter 53 of the EIG: "This gave caseworkers scope to consider granting persons permission if they had been in the UK for six to eight years rather than ten to twelve years as previously stated." And "almost all of the cases that have been granted …were all individuals who had been in the UK in excess of 6 years" (UKBA witness statement quoted in Hakemi, paragraph 15)
(9) 26.10.2009 C submitted further representations 
(10) 8.6.2010 C submitted further representations
(11) 14.7.2010 D informed C his case would be considered under the Legacy Programme
(12) 1.9.2010 C submitted further representations 
(13) 29.10.2010 D internal email memo: "where a case is genuinely borderline …most often if the negatives associated with an applicant are associated with non-compliant behaviour rather than criminality … it is more likely that we would err on the side of granting. But we do apply the guidance on non-compliance as detailed in chapter 53 of the EIG."(UKBA internal email memo quoted in Hakemi, paragraph 8)
(14) 28.3.2011 C submitted further representations
(15) 31.3.2011 CRD completed its internal review of all legacy asylum cases
(16) 16.5.2011 C submitted further representations
(17) July 2011 CI of Borders and Immigration (March – July 2012 report): "I consider that applicants who had been told that their case would be dealt with by July 2011 had a reasonable expectation that their cases would be resolved by that date".
Transfer of estimated 116,000 "rump" of CRD cases to CAAU including estimated 18,000 active cases
(18) 13.7.2011 C submitted further representations
(19) 20.7.2011 IRs amended: Applications to remain to be determined by reference to new Rules
EIG amended: appropriate duration of leave following a favourable consideration of paragraph 395C changed; maximum grant of DLR 3 years; no transitional periods
(20) 31.8.2011 4,800 of the 18,000 active cases: "apply the following criteria under paragraph 395C … use the lowest limit of 4 years' residency for single applicants … use the lower limit of 3 years' residency for families."(UKBA internal email memo quoted in Hakemi, paragraph 9)
(21) 31.1.2012 C's PAP letter
(22) 19.1.2012 Paragraph 395C deleted from IRs and replaced with paragraph 353B 
(23) 9.7.2012 EIG amended: in determining whether or not exceptional circumstances exist, 353B factors should be considered as a whole; DLR should be a maximum of 30 months (3 years in exceptional cases)
(24) 27.2.2012 C's claim form filed
(25) 22.3.2012 D agrees to consider further reps within 3 months
(26) 3.8.2012 D refused representations and refused to treat them as a fresh claim
(27) March 2013 Target date for resolution of all cases where individuals remained in the UK
This C's relevant circumstances 
3.	The claimant's relevant circumstances are that he was a failed asylum seeker who had claimed and been refused asylum on two separate occasions before 5 March 2007 but whose case was still open because he had neither left the UK nor been granted leave to remain. He had made a further claim or submitted further representations[2] on 26 October 2009 having been residing in the UK for 10½ years at that date. These representations were accepted by the CRD for processing as what is now called "a legacy claim". This claim was not determined until 3 August 2012 nearly three years later after it had first been submitted by which time the claimant had been resident in the UK for over 13 years. 
Basis of claim for challenging the refusal of representations 
4.	The claimant's claim should have been considered and decided before 20 July 2011, being the date that the defendant had publicly announced and the Inspector of the UKBA had advised the House of Commons, by which all CRD cases would have been completed and by which the claimant had a legitimate expectation or a reasonable belief that his case would be completed. Had the claimant's case been decided by that date, it would have been considered by reference to an internal policy, practice or approach to delegated decision-making whereby he would have been likely to have been granted permission to remain since he had been in the UK for longer than 6 – 8 years. For reasons based entirely on where in the queue waiting a decision his file had been placed in the CRD, his case was only decided after the IRs and the EIG were amended so as to provide, in effect, that only in exceptional circumstances would leave to remain (and discretionary leave to remain at that) would be granted since the prevailing policy was now governed by a new IR 353B, the newly introduced IRs identifying the defendant's policy for the application of article 8 and suitably amended EIGs to go with these changes. 
5.	The defendant's principal response to this case is to rely on this passage in the decision letter dated 3 August 2012: 
"… it is not considered that your length of residence on its own suggests that you should benefit from a grant of leave. Consideration has also been given to your strength of connections in the UK but you have not submitted anything to suggest that you have ties here which are strong enough to give rise to a grant of leave. Furthermore, it is believed that there are no compelling compassionate circumstances in your case which would give rise to a grant of leave."
Claimant's case in summary 
6.	The claimant's representations should have been considered by reference to the IRs, the EIGs, the prevailing unpublished administrative guidance and the practices that were used by decision-makers within the CRD in order to facilitate rapid decision-making, setting out the approach to CRD decision-making that was adopted and applied by the CRD for the decisions it took between August 2009 and July 2011. 
7.	The principle documents relied on in this application as evidence of CRD's approach to decision-making in that period are those referred to in paragraphs 2(8), (13) and (17) above. In other legacy cases, additional documents are also relied on. These documents show that the practice had developed by the CRD that the then applicable IRs and EIGs, policies and practices that were applied between 2009 and 2011 to those whose CRD file was being considered for closure were applied in such a way that those who had been living in the UK, whether legally or illegally, for at least 6 years should expect to be granted ILR unless they had a particularly bad record or adverse set of reasons to preclude a grant of ILR. The House of Commons is to be taken to have accepted the amendments to the IRs in 2011, including the replacement of IR 395C by 353B, on the basis that all CRD files were closed when it is now clear that many thousands of such cases remained open. 
8.	Basic fairness should require that all those whose CRD file had not been closed when the files "owned" by and the work of the CRD were passed to the CAAU repository of the historic files of failed asylum claimants in July 2011 should be treated in the same way, and their decisions taken by application of the same rules, policies, principles and practices as those whose files were closed by the CRD prior to July 2011. This is particularly so since it was (although not invariably) its lack of resources that prevented the CRD from completing its work before mid-2011 and a matter of chance whether or not a particular applicant's file was closed before rather than after the closure of the CRD. 
9.	Thus, the claimant was entitled to expect that his length of residence, in the absence of any good and adverse reason why this approach was not justified in his case, of over 8 years would lead to a grant of leave to remain. This case was not considered by the defendant and the reasons put forward for refusing him leave to remain that are quoted above do not begin to address the claimant's case. 
10.	The claimant's expectation is based on the following: 
(1) Basic fairness required the defendant to treat all "legacy" cases alike and not to close the CRD or to shut off the prevailing CRD approach to decision-making in such cases before the files in all those cases had been completed and closed. The defendant should have adopted a system in July 2011 for decision-making in open legacy cases whereby those who were adversely affected by the closure of the CRD, and by the imposition of an arbitrary cut-off from CRD decision-making, should have been provided with transitional arrangements so as to ensure that their outstanding open files would be dealt with in the way that the CRD would have dealt with them. The failure to implement such transitional arrangements is unconscionable, unfair, unlawful, a breach of article 8 (private and family life), disproportionate, arbitrary and a failure to give effect to the legitimate expectation of those with outstanding open files. 
(2) The claimant's case is similar to Mohammed[3] where judicial review was granted and is not excluded by Hakemi[4] since the periods of residence in 3 of the 4 cases considered in Hakemi were less than 6 years and the fourth case was ruled out on the basis of that claimant's significant deception. In this case, there is nothing of any note which could reasonably found a refusal of leave given the claimant's unblemished and lengthy period of residence.
(3) The large and growing number of cases relying on this "legacy principle" shows that there is a new and developing type of case which is loosely labelled "legacy" which appears susceptible to judicial review for which none of the present categories of judicial review are fully adequate to address. This type of case has hallmarks of the need for consistency and the treatment of similar cases in similar ways, legitimate expectation, the need for rational and structured decision-making, a change of policy and practice without giving thought to the "transitional cases", the failure to address article 8 (both private and family life) in the context of the consequences of the Reid "legacy" solution to the Home Office and UKBA's inability to cope with the backlog of asylum claims in 2007 and the shortcomings of the Immigration Rules process which is a unique form of legislation created by informal parliamentary approval rather than by enactment. 
(4) This judicial review melange is further added to by the UKBA's present stance that there is no such thing as a "legacy" case and that the Secretary of State may and does change policy with immediate effect without affected individuals being entitled to complain or to seek to rely on a transitional regime. Moreover, all "legacy" claimants were living unlawfully in the UK and should have left the UK and "gone home" as soon as they became appeal rights exhausted. All these assumptions or contentions are open to challenge.
Conclusion 
11.	I find the claimant's case has reasonable prospects of success. It is not for me to craft the particular judicial review ground which most clearly fits this case. Many of these grounds overlap with each other and the substantive hearing in this, and possibly a number of others, will need to consider in detail whether this type of case has a remedy at all and, if so, what its parameters are. Once the size and scope of the legacy problem has become clear, the legacy claim will probably need to be considered by the Court of Appeal and possibly by the Supreme Court. The claimant should therefore be entitled to pursue all his pleaded grounds and, furthermore, none of them are hopeless. I therefore grant permission to apply for judicial review on all grounds. 
12.	The usual order applicable to the grant of permission should be made. Expedition will be ordered.

Order
1.	Permission will be granted.
2.	Expedition will be ordered
3.	The court will send to the parties directions for the hearing following the hand down.