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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

28 AUG 2013

R (on the application of Che) v Secretary of State for the Home Department [2013] EWHC 2220 (Admin); (2013) PLLR 099

Immigration - Legacy - Legitimate expectation

The Claimant's case had been determined under the legacy programme. A subsequent letter sent by mistake did not give rise to the legitimate expectation that a further decision had yet to be made.

26 July 2013

Administrative Court

CMG Ockelton

(1)        The Claimant was a national of Cameroon whose case was one of the ‘legacy' cases. The Claimant contended that he was entitled to a benefit as a result of the Defendant's programme for resolving such cases. The resolution of legacy cases had been dealt with by the Case Resolution Directorate (CRD) and then, later, the Case Assurance and Audit Unit (CAAU).

(2)        The Claimant arrived in the UK around 7 February 2006. He made an asylum claim, which was refused on 17 October 2006. Further submissions were made at various points, including in June 2011, when the Claimant made a claim based on Article 8 ECHR. A decision dated 30 May 2012 was issued by the Defendant, which stated that the submissions made on behalf of the Claimant did not amount to fresh claims, and so did not require a new immigration decision. The decision-maker set out that factors taken into account were those set out in paragraph 353B of the Immigration Rules, which had been inserted on 13 February 2012, and made clear that there were no exceptional circumstances applicable. The Defendant maintained that the removal decision issued on 30 March 2007 remained in force.

(3)        The Claimant received his legacy decision, and the removal process had begun. However, on 31 July 2011, the Claimant received a letter indicating that his case was one on which a final decision had not yet been made. He contended that this gave rise to a legitimate expectation of a further decision, which has not been made. The Defendant contended that this letter was sent out only by error.

(4)        The Claimant's substantive grounds were:

(a)        the Defendant unlawfully delayed in making a decision resulting in a legitimate expectation that the decision would be made by or shortly after 21 August 2011;

(b)        the delay in making the decision had a significant adverse effect due to a change in policy and practice as to legacy decisions made after 31 July 2011 (namely, had the decision been made without delay, leave would have been granted); and

(c)        the decision dated 30 May 2012 was inadequately reasoned and failed to take into account the submissions made about the Claimant's circumstances at that time.

(5)        HELD: The Court commented that people's expectations about the legacy process were simply unsustainable. Each case would have to be reviewed, which would take some time, and the outcome would either be the granting of some form of leave or removal. It was not the case that leave would be granted to all those not immediately removed: the Court emphasising that it is more complicated to effect removal than it is to simply grant a person leave.

(6)        The principles to be applied to legacy cases were no different to those applied to other cases. Specifically, inclusion in the legacy process gave rise to no further expectation that leave would be granted.

(7)        The Court emphasised in relation to the issue of legitimate expectation after 31 July 2011, that the earlier decision had been very clear. Relying upon Paponette v A-G of Trinidad and Tobago [2010] UKPC 32 at [28] - [30], the Court looked for a clear, unambiguous promise that was devoid of relevant qualification. The Court did not find such a statement. It was emphasised that the Claimant knew that a decision had been reached on his case, and there was nothing indicating the legacy programme to involve repeat review of determined cases. As such, the Claimant could not be said to have derived any legitimate expectation from the letter of 31 July 2011.

(8)        Further, there was no basis for stating that the Claimant's case fell to be determined under any rules and policies other than those in force at the time of the decision. The decision-maker was found to have properly considered all of the material available to him, and the decision properly reflected this.

(9)        The reasons given were intelligible and accurate, and there was no basis for stating that they were not sufficient or inadequate.

(10)     The claim thus fell to be dismissed.

Claim dismissed

Key Paragraphs

[21] - Unsustainable expectations. 

[23] - No expectation of leave.

[29] - Removal complicated.

[42] - No legitimate expectation.

[44] - Relevant rules and policies.

[48] - Relevant material considered.

[49] - Reasons. 

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