09 OCT 2014
Gunduz v Secretary of State for the Home Department  EWHC 2688 (Admin); (2014) PLLR 092
Queen’s Bench Division, Administrative Court, Ms D. Gill
31 July 2014
A consent order ending a judicial review in which the Secretary of State for the Home Department agrees to consider the claimant’s case and evidence does not render an earlier refusal decision erroneous or invalid. An individual cannot develop legitimate expectations to be considered under the legacy programme.
(1) The claimant challenged a decision of the SSHD to grant him 3 year’s discretionary leave to remain (DLR) rather than indefinite leave to remain (ILR) under the ‘legacy’ programme.
(2) The claimant, a Turkish national, was refused asylum in 2005 and denied leave to remain under the EC Association Accession Treaty in 2006. He was encountered in 2010, and argued that he came within the legacy caseload, though he had no children, a relationship or evidence of lawful employment at this time.
(3) A March 2011 review of his case found that he had no basis to remain in the UK due to his failure to mention any partners, children or employment, and that he should make arrangements to leave. The defendant also rejected further representations the claimant made in August 2010 on the ground that further representations made by post after 13 October 2009 were not accepted by the UKBA.
(4) After this decision, the claimant’s solicitors wrote to the UKBA complaining that the decision was in violation of the claimant’s right to family and private life, first mentioning his having a partner on 2 June 2011.
(5) In August 2011, the claimant lodged a claim for judicial review. At this time, the claimant’s relationship with his then-wife had broken down; two months later, he went through a religious marriage with another woman who had leave to remain under the EC Accession agreement until February 2014.
(6) That judicial review claim was settled by consent in December 2011. The defendant agreed to consider the claimant’s representations of August 2010 and make a decision about the claimant’s status within three months. The claimant put forward evidence both on the basis of his new marriage, as well as a claim that his removal would breach his Article 8 rights.
(7) The defendant granted the claimant 3 years DLR outside of the immigration rules on 11 June 2012. The defendant rejected the claimant’s representations as a fresh claim under para 353 of the Immigration Rules, upholding the 2005 asylum claim ruling.
(8) The claimant lodged the instant case in September 2012 due to the failure to grant him ILR on a number of grounds. His claim was amended in May 2014 to reflect that his application had also failed under the new repealed Immigration Rules para 395C and the EIG para 53.1.2.
(9) The claimant argued six grounds in challenging the defendant’s decisions:
(1) the consent order made previous decisions no longer valid or erroneous, entitling the claimant to ILR under the legacy programme;
(2) in reliance on the consent order, the defendant has unlawfully discriminated or acted conspicuously unfairly against the claimant in failing to consider him under the legacy programme;
(3) the claimant had a legitimate expectation that the defendant would reconsider his case under the legacy programme;
(4) the defendant gave inadequate reasons for her decision to grant 3 years’ DLR rather than ILR;
(5) the withdrawal of the policy to grant ILR for those in the claimant’s position was unlawful;
(6) the deletion of para 395C and the introduction of para 353B was made on the false premise that all cases in the legacy programme had been completed.
(10) HELD: The claimant lost on all grounds. As a preliminary matter, the court held that the defendant had not granted the claimant leave to remain under Article 8 or para 395C, but under para 353B and the then-applicable policy in chapter 53 of the Immigration Rules. It further held that the defendant had not agreed to reconsider its decisions of March 2011.
(11) Ground 1: The preliminary finding that the consent order did not make previous decisions erroneous or invalid precludes any basis for this claim.
(12) Ground 2: For similar reasons to ground 1, the claimant had not been discriminated against because the March 2011 decision was not erroneous or invalid. The claimant was not close to establishing an Article 14 claim, and the reasons given for distinguishing the present case from Hamzeh and Mohammed ignore crucial aspects of the reasoning of those decisions.
(13) Ground 3: The defendant had not agreed to re-open her March 2011 decision, and her letters to the claimant had not promised that decisions claimant’s case would be re-taken with the policy which existed at the time if such an event came to pass. The claimant’s reliance was also not properly demonstrated.
(14) Ground 4: Review decisions under the legacy programme are not ‘immigration decisions’ requiring detailed reasons to be given. The decision also fell within the general policy of the time to grant 3 years DLR unless certain exceptions were made out. The defendant’s stated reasons were plain, adequate and sufficient.
(15) Ground 5: The court found that the legacy policy had not been withdrawn from the claimant because it did not apply to him. It distinguished the present case from KA(Turkey), which concerned an immigration policy change negatively impacting the claimant. There, the policy was clear and unambiguous, and the claimant had relied on existing aspects of the policy when he started his business. His later breach of conditions when the policy was changed was based on reliance on the defendant’s former practice, and the defendant had taken a different stance on individuals in identical circumstances. In the present case, the claimant could never have ‘applied’ to the legacy programme; the legacy programme was not a clear-cut policy; and the existence of the legacy programme did not create any legitimate expectation to receive ILR among those to whom it might apply.
(16) Ground 6: The court was not shown material demonstrating that misstatements had been made to Parliament. There was no real engagement with the Geraldo case, which considered similar arguments. The court found it impossible to show how any misstatements to Parliament could have had the effect claimed, and KA (Turkey) does not offer any assistance to the claimant.
 – Effect of consent order
 – Re-taken decisions
 – Re-taken decisions
 – Consistency of leave to remain decisions
 – Legitimate expectations
- –Adequacy of reasons
 – Application of legacy policy
 – Withdrawal of immigration policies
 – Misstatements to Parliament
 – Legacy cases