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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

19 MAR 2014

Kadyamarunga v Secretary of State for the Home Department [2014] EWHC 301 (Admin)

Kadyamarunga v Secretary of State for the Home Department [2014] EWHC 301 (Admin)

The Defendant was found to have made a commitment to resolve the Claimant's Legacy asylum case by July 2011. Had this been fulfilled, indefinite leave to remain would have been granted, and was therefore due to the Claimant in this case.

14 February 2014

Administrative Court

Green J

(1) This case involved one discrete issue, did the Defendant send the Claimant a letter promising that her application for leave to remain would be dealt with by 20th July 2011. If that promise was made, the Claimant was entitled to indefinite leave to remain.

(2) The Claimant, a Zimbabwean national, arrived in the UK on 19 September 2011 and claimed asylum. That application was refused on 26 September 2001. On 21 February 2005, further representations were made on the behalf of the Claimant and her family. In 2006, the Claimant received the standard Legacy questionnaire, which the Claimant said was accompanied by a commitment that a decision would be made as to her application by 20 July 2011. However, no decision was made by that date. A decision was not made until 19 October 2012, when the application was refused, but discretionary leave to remain was granted, subject to the condition that there be ‘no recourse to the public funds'.

(3) The Claimant's case was that she should have been granted indefinite leave to remain on the basis of the UK Border Agency's guidance on the grant of discretionary leave to remain.

(4) HELD: The Court accepted that had the decision been taken by 20 July 2011, then there would have been a grant of indefinite leave to remain.

(5) The Court noted that the Defendant never filed an acknowledgment of service, and only applied to enter a defence very late on, when there was no justifiable basis for not having filed or served this earlier.

(6) In relation to legitimate expectation, the Court held that the general rule was that decision makers were entitled to apply the policy applicable at the time of the decision. Nonetheless, the decision maker should also consider the impact of any failure by the Defendant to fulfil a duty upon it. Cases where clear promises have been made fell into this category, and in such cases, it may be unlawful to apply a new policy to old circumstances.

(7) The Court was satisfied that a letter was sent to the Claimant that promised to make a decision before 20 July 2011. The Defendant did not challenge the Claimant's evidence relating to the existence of this letter in any meaningful way. The Claimant produced evidence demonstrating that the UK Border Agency intended to resolve cases by July 2011, and gave written commitments to that effect.

(8) The Court concluded that the application for judicial review be granted, and the Claimant was entitled to an order that she be granted indefinite leave to remain.

Claim succeeded.

Key paragraphs

[20] - Failed file defence.

[23] - Commitment.

[27] - Promise letter sent.

[30] - No challenge.

[35] - Conclusion.

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