09 OCT 2014
Tesfay v Secretary of State for the Home Department  EWHC 2109 (Admin); (2014) PLLR 100
Queen’s Bench Division, Administrative Division, Christopher Butcher QC
10 July 2014
The Secretary of State for the Home Department has no obligation to consider cases as part of the ‘legacy’ programme, nor to conclude these cases by any particular time. Legacy cases are considered under the same legal standards as other cases.
(1) The claimant, an Ethiopian national, applied for judicial review of the defendant’s failure to make a decision on the claimant's outstanding application under the legacy scheme. He further argued that her failure to grant him indefinite leave to remain is unlawful.
(2) The claimant entered the UK illegally in 2003 and claimed asylum. His mother was Eritrean and he feared mistreatment upon his deportation from Eritrea to Ethiopia in 2003. His asylum application was refused in 2004, largely based on the conclusion that he had fabricated his deportation to Ethiopia.
(3) The claimant lost a series of appeals and his appeals rights were exhausted on 6 September 2005. He did not leave the UK, but submitted further representations in 2006, which were refused by the defendant in 2008. This process was repeated with another set of further representations in 2009 and refusal in 2011. The present proceedings were lodged in July 2012 challenging this refusal. In August 2013, the defendant sent a supplementary letter of refusal detailing the grounds of refusal and holding that the claimant’s removal was still appropriate.
(4) The claimant advanced 4 grounds of the defendant’s allegedly unlawful conduct:
(1) the defendant had failed to conclude the claimant’s case was a ‘legacy case’;
(2) the defendant did not properly consider the claimant’s length of residence, the defendant's own delay in deciding his previous fresh claims and his “unremovability”;
(3) the August 2013 letter was no answer to the claim, on the basis that it was factually flawed, failed to have regard to all the relevant factors in the Claimant’s case, failed to have regard to his length of residence and failed to have regard to his “unremovability”; and
(4) the defendant should grant some leave to remain to prevent the claimant from being ‘in limbo’ as an undocumented Eritrean.
(5) HELD: The claim was dismissed.
(6) On ground (1), the court found that the arguments put forward on this ground had been rejected in R (Che) v SSHD  EWHC 2220 and R (Hamzeh) v SSHD  EWHC 4113. The defendant had no obligation to ‘conclude’ a legacy case by any particular date, as the programme was an operational one only with no distinct legal framework. There could be no public law error on the basis of failing to conclude a legacy case by a certain time, as the claimant could have no expectation of it. In any event, the claimant had a ‘legacy decision’ in the 2011 rejection of his claim.
(7) On ground (2), the court again found the claim was erroneous in its assumption that legacy cases were being treated differently from other applications. The court considered the arguments presented on the grounds that the defendant acted unlawfully in failing to consider the stated factors. The court found that it was impossible to see a public law error for four reasons: considerations referred to in paragraph 395C were addressed; this was part of a ‘holistic’ appraisal of the Claimant’s case; there were, apart from length of residence in the UK - to the extent to which that was positive - no other positive factors, such as contribution to the community or strength of connections with the UK; and the conclusion which was reached was one which cannot be said to have been outside the range of possible conclusions on the case. None of the individual factors demonstrated a basis for finding error in the 2011 decision, and there was no requirement under paragraph 395C to consider removability.
(8) On ground (3), the court found that the claimant’s arguments should not be considered as they went well beyond the scope on which he had been permitted to seek judicial review. The court found that if it were to consider the arguments, it was not satisfied that there was any relevant error such that the decision was unlawful. Errors of fact rendering a decision unfair would need to be shown to be uncontentious and objectively verifiable, which could not be shown in this case.
(9) The court found that ground (4) had no identifiable basis in law. The only people to whom this argument might have some relevance are British Overseas Citizens.
(10) The claimant’s Article 8 contentions were dropped at oral argument, but the court found that they would have been rejected based on the claimant’s failure to show a private or family life in the UK that might be interfered with.
 – Legacy cases
 – Legacy decisions
 – Public law error
 – Length of residence
 – Delays in immigration decisions
 – Removability
 – Arguments beyond judicial review permission; errors of fact
 – Errors of fact
 – Delay, unremovability and length of residence
 – State of immigration ‘limbo’
 – Article 8
 – Conclusion