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R (on the application of Mohammed) v Secretary of State for the Home Department [2012] EWHC 3091 (Admin); (2012) PLLR 151

Immigration - Relevant policy - Wednesbury Unreasonable - Leave to remain

The Defendant had failed to consider the relevant policy in making her decision to refuse to grant the Claimant leave to remain. As such, the decision was Wednesbury unreasonable.

2 November 2012

Administrative Court

Stephen Morris QC

(1)        Fatima Farhana Mohammed, the Claimant, sought judicial review of the Defendant's refusal to grant her leave to remain in the UK. Her case was one of the ‘legacy programme' cases that had previously been dealt with by the Defendant's Case Resolution Directive (‘CRU'). Legacy cases are asylum claims that were made before 5 March 2007, but for some reason have not been fully concluded.

(2)        The Claimant's case was that she was:

(a)        still awaiting a decision of her case under the legacy programme;

(b)        this case should be stayed pending consideration of the Claimant's case by the Case Assurance and Audit Unit (‘CAAU') who took over consideration of the CRU's work (as happened in the case of R (on the application of Piragash) v Secretary of State For Home Department); and,

(c)        In any event, the Defendant's decision dated 7 February 2011 refusing the Claimant discretionary leave to remain should be quashed as it was Wednesbury unreasonable or otherwise unlawful.

(3)        HELD: The Court found there to be obvious errors in the Claimant's decision letter dated 7 February 2011, namely a reference to China rather than Sri Lanka as the country to which the Claimant would be removed. Further reference was made to particular aspects of the Claimant's private life, and yet no detail in relation to this was provided.

(4)        The Court held that the letter of 7 February 2011 made clear that a decision had been made. The Claimant could not have understood her application to have remained outstanding and there was no legitimate expectation of a further decision, as a clear decision had been made.

(5)        The Court used what little information it had about those Piragash case, to distinguish this case from it. It was stated that in those cases there had been no consideration by the CRD or CAAU at all, whereas this decision had been made by the CRD.

(6)        The Court however found that there was no clear evidence that the decision maker had considered the length of residence by the Claimant. The Court held that it was not clear that the Defendant had applied the relevant considerations under paragraph 395C of the Immigration Rules.

(7)        Accordingly, the Court found that proper consideration of length of residence had not been made by the Defendant and this alone was sufficient to render the decision Wednesbury unreasonable. Further, no explanation was given as to what weight had been given to the Claimant's risk of absconding and it was incorrect to say that no representations had been made, as they had. 

(8)        The Court held that the Defendant had properly considered the Claimant's personal circumstances in her decision of 7 February 2011. There was also said to have been insufficient evidence regarding other similar cases in order for the Court to reach the conclusion that there had been inconsistency of treatment.

(9)        The Court held that it was not for it to direct the Defendant to grant the Claimant leave to remain, but a new decision should be made in light of this judgment. 

Claim succeeded.

Decision quashed.

Key Paragraphs

[55] - Decision letter anomalies.

[64] - No legitimate expectation.

[66] - Distinguish Piragash.

[70] - Considered policy.

[81] - Length of residence.

[84] - Application relevant rules.

[89] - Wednesbury unreasonable. 

[92] - Risk absconding.

[98] - Personal circumstances.

[99] - Inconsistent treatment.

[121] - [122] - New decision in light of judgment.

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