Following on from Hakemi, the High Court has again scrutinised the leave to remain under the “Legacy” cases, and found the SSHD’s adherence to the policy wanting.

In a welcome move last Friday Mr Stephen Morris QC, sitting as Deputy High Court Judge, quashed as unlawful the decision to refuse the Claimant leave to remain without having full regard to the provisions in Chapter 53.

Mohammed v SSHD [2012] EWHC 3091 (Admin), handed down on Friday 2 November 2012, is the latest decision in which the court found the decision to refuse leave under Paragraph 395 unlawful:

“In taking the decision in the 7 February 2011 letter, the Defendant (through the caseworker in question) was required to consider not only the terms of paragraph 395C itself, but also expressly the guidance set out in Ch. 53. The Ch. 53 guidance contains specific and quite detailed provision relating to length of residence. Whilst in terms this guidance applies to all cases under paragraph 395C, it is, by definition, liable to fall for specific consideration in many if not all “legacy cases”, since such cases are necessarily cases of delay. Thus what is said in the guidance about length of residence has particular relevance in a legacy case.”

The case of Hakemi was on the whole negatively received by practitioners, giving as it did “very wide discretion” to the Home Office when it considered the relative weight of the factors previously listed in paragraph 395c.

Mohammed, is much more helpful to individuals in the “legacy programme” and it could have far-reaching consequences. Although Mohammed does not explicitly criticise the reasoning in Hakemi, it noticeably moves away from it in spirit, the tenor of the cases are markedly different, and one is left with the impression that Morris J was not enamoured with the deference afforded the Executive by Burton J.

Despite all the problems with the judgment in Hakemi, it did establish that continuous residence of 6 years, “all other things being equal”, could result in a grant of leave to remain.

In this case, Mohammed is a Sri Lankan woman who entered the UK in December 2001. After a convoluted immigration history, which included claiming asylum in October 2002, she came to submit further representations in September 2009. These were refused in February 2011.

The JR was a challenge against the refusal of February 2011. The Court agreed that the decision was unlawful, it noted that the decision letter failed to give any indication that, when the factors listed under paragraph 395c were considered, that the guidance in Chapter 53 of the Enforcement Instructions and Guidance (EIG) was applied.

The Court, helpfully, interpreted chapter 53.1.2 to mean that residence (not delay on the part of the Home Office) of 6 to 8 years ought to be afforded significant weight against a decision to remove, particularly in Mohammed’s case where 10 years residence was deemed a weighty factor. The Court found that in

“…the present case there is no reference in the express terms of the letter to the fact that residence of between 6 to 8 years is a significant factor or that it weighs in favour of the grant of leave to remain. All that there is the assertion of the bald fact of the Claimant’s residence of 10 years and 1 month”.

The Court quashed the decision of February 2011, in effect, because of a failure to have regard to the guidance as stated in Chapter 53 and Paragraph 395c. The Claimant’s length of residence was significant and it was therefore incumbent upon the Home Office to explain why removal was still appropriate in these circumstances.

The Court, rather elegantly, considered Rashid and applied the ratio of R(S), noting that there has been an injustice to the Claimant as paragraph 395c had been repealed on the 13^th February 2012, which left her with the less generous provisions as contained within the new Paragraph 353b. Nevertheless the court observed that the SSHD should grant leave, considering as legally relevant the resulting injustice suffered by the Claimant by virtue of the flawed decision of February 2011. The court had regard to the “correction of injustice” approach as set out in other highlighted unfairness type cases.

This decision is a fair one to those applicants who have been disadvantaged in the past when the SSHD have deigned to decide individual cases.

[some additional reporting by Varun Kesar]