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19 MAR 2014

Nzangane v Secretary of State for the Home Department [2014] EWHC 555 (Admin)

Nzangane v Secretary of State for the Home Department [2014] EWHC 555 (Admin)

There was no published policy which required that the Defendant grant the Claimant indefinite leave to remain based on the length of time he had been present in the UK and the delays involved in the Defendant reaching an asylum decision.

5 March 2014

Administrative Court

Green J

(1) The Claimant was a Zimbabwean national who arrived in the UK on 21 February 2002. He made an asylum claim on the basis that if returned to Zimbabwe he would be persecuted on the basis of his political opinions. That application was refused, along with subsequent appeals. The Claimant later made a further application seeking indefinite leave to remain outside of the Immigration Rules. The basis of this claim was the same as his earlier application, save with the addition that he was now at risk of persecution due to his being a failed asylum seeker.

(2) A final decision was only made on 9 February 2012, whereupon the Claimant was told that he was being granted discretionary leave to remain for a reason not covered by the Immigration Rules. No reasons were given for the refusal to grant indefinite leave.

(3) The Claimant contended that the Defendant had changed her policy in July 2011 so that Legacy applications would only be granted discretionary leave to remain, rather than the previous policy of granting indefinite leave to remain. It was alleged to be unlawful to apply the less generous policy to pre-existing applicants. The Claimant sought to distinguish his case from that of Geraldo v SSHD [2013] EWHC 2763 (Admin).

(4) The Claimant's grounds of challenge were that the Defendant acted irrationally in failing to apply the policy identified in paragraph 7.44 of the Vine Report (a report by the Independent Chief Inspector of Borders and Immigration entitled "An Inspection of the UK Border Agency's Handling of Legacy Asylum and Immigration cases" March-July 2012), and/or in failing to give reasons for not doing so.

(5) The Claimant argued that paragraph 7.44 evidenced a clear policy to be applied post-July 2011 to grant Legacy applicants indefinite leave where there were "compelling" reasons for so doing based on length of residence, serious administrative delays, and prior periods of discretionary leave granted to the applicant. The Claimant argued that he fell within the exception.

(6) HELD: The Court held that there were three issues arising from this challenge. The first concerned whether it could properly be inferred from the Vine Report that a policy existed reflecting a discretion to grant ILR outside of the Immigration Rules. The second concerned the extent of any such policy, whilst the third addressed whether, if such a policy existed, it was applicable to the Claimant.

(7) As to the first issue, the Court found that there was no evidence that a policy as to a residual exceptional discretion was ever published or implemented. The basic rule was that exceptions to the rule should not defeat the rule itself. On this basis, the Court held that there were no ‘compelling' reasons policy based on paragraph 7.44 of the Vine Report.

(8) The Court noted, as had been recorded in Geraldo, that the Defendant had a residual discretion to depart from the Immigration Rules, but did not find there to be a specific policy by which a party who had been in the UK for a long time awaiting a decision was automatically an exception to the normal grant of discretionary leave to remain. The criterion of length of stay could not, itself, amount to exceptional circumstances due to the huge number of persons who would fall into such a category. Whilst an applicant's circumstances might attract sympathy, that does not justify their being considered exceptional. The Claimant was said to be far from exceptional.

(9) Delays in dealing with the Claimant's case did not make the Claimant's case exceptional, as this was a common experience. This claim thus fell to be dismissed.

Claim dismissed.

Key paragraphs

[24] - Residual not published.

[26] - Exceptions not defeat rule.

[26/34] - No compelling reasons policy.

[35] - Length of stay not exception.

[36] - Not exceptional.

[38] - Delays.

[40] - Conclusion.

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