R (On the Application Of Mohamed) v Secretary of State for the Home Department  EWHC 1405 (Admin)
The Court refused to grant an adjournment pending an appeal in Geraldo where permission for that appeal had been refused at first instance, and where to grant such an adjournment would only cause a considerable backlog in cases of this type. The Defendant’s failure to grant indefinite leave to remain was lawful and the claim thus failed.
8 May 2014
Queen’s Bench Division, Administrative Court
Philip Mott QC
(1) The Claimant, who was born in Palestine, received a letter from the UK Border Agency on 10 January 2012 which stated that subject to final security checks, he would be granted leave to remain in line with current Immigration Rules. Nonetheless, on 7 September 2012, he was refused leave to remain. That decision was subsequently withdrawn. A new decision was granted on 12 June 2013 and leave to remain was granted for 30 months until 12 December 2015.
(2) The Claimant brought this claim challenging that decision on the basis that he should have been granted indefinite leave to remain, rather than limited leave to remain. The Claimant contended that his case involved an interpretation of the ‘legacy programme’, which was inconsistent with the findings of R (Geraldo) v SSHD  EWHC 2763 (Admin). It was acknowledged that the Claimant’s arguments could only succeed if Geraldo was found to be incorrectly decided.
(3) The Claimant’s broad challenge was that each case under the legacy programme was to be concluded, and that conclusion meant either removal or the grant of indefinite leave to remain. The four specific grounds of challenge were:
(a) The Claimant had a legitimate expectation that his case would be dealt with by 19 July 2011, and any grant of leave would be indefinite leave to remain.
(b) The Claimant could rely on historic injustice: his case had been subject to delay and mishandled.
(c) The Defendant failed to provide reasons for not granting indefinite leave to remain and failed to show that the residual discretion to make such a grant had been considered.
(d) The decision was unfair and irrational because indefinite leave to remain should have been granted.
(4) The Claimant also sought to amend this claim to challenge the grant of leave stating that, even if limited, it should have been for 3 years rather than 30 months, because on 10 January 2012 the policy was to grant 3 years discretionary leave, and the change to 30 months only occurred on 9 July 2012.
(5) HELD: The Court refused an adjournment until after an appeal in Geraldo was decided due to permission to appeal having been refused by a judge at first instance, and there being no indication that such an appeal would have any prospect of succeeding. The Court commented that if all relevant cases were stayed pending a possible appeal in Geraldo, a considerable backlog would be created. Referring to AB (Sudan) v SSHD  EWCA Civ 921, the Court noted that adjournments or stays should only be granted where they are necessary in the interests of justice. The Court held that a stay was not required in this case. The rejection of the Claimant’s case based on Geradlo would not affect his current status as he has leave until December 2015. Further, the application for an adjournment/stay was only made after this case had been listed for trial.
(6) The Court refused the Claimant permission to amend the claim, stating that the application was made too late and to raise it 9 months after the decision had been made was unacceptable.
(7) The Court held that the substantive claim failed on the following bases:
(a) No clear and ambiguous decision was set out in the material relied upon, and so there was no basis for a claim for legitimate expectation.
(b) The grant of leave was in accordance with the rules as they were set out at the date of both decisions. It was neither unlawful nor irrational.
(c) There was also nothing giving rise to historic injustice. The delays involved in this case were not great by legacy standards and did not amount to unlawful conduct. The flawed initial decision had been rectified by the later decision and gave rise to no historic injustice.
(d) There was no requirement for reasons to be given for not exercising a discretion. The facts arising in this case did not come close to the requirement of exceptionality.
(8) In concluding, the Court noted that since the judgment was circulated in draft, permission to appeal had been refused on Geraldo. The case was thus dismissed.
 – Adjournment request rejected.
 – Permission to amend.
 – Geraldo correct.
 – Claim failed.
 –  – Conclusion.