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Legacy cases criteria


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Not much to report on this one, just that I tried a Freedom of Information request on the criteria for deciding Legacy cases and get a non-answer back in return. The request was refused to begin with but that decision was overturned on appeal. The information gleaned is already more or less in the public domain, however: apparently Immigration Rule 395C is simply applied, in combination with some of the deportation rules, such as paragraph 367.

Paragraph 395C reads as follows:

395C. Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State including:

(i) age;

(ii) length of residence in the United Kingdom;

(iii) strength of connections with the United Kingdom;

(iv) personal history, including character, conduct and employment record;

(v) domestic circumstances;

(vi) previous criminal record and the nature of any offence of which the person has been convicted;

(vii) compassionate circumstances;

(viii) any representations received on the person’s behalf.
In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account.

Paragraph 367 then provides as follows:

367. In considering whether to require a spouse or child to leave with the deportee the Secretary of State will take account of all relevant factors, including, as well as the following:

(i) the ability of the spouse or civil partner to maintain himself and any children in the United Kingdom, or to be maintained by relatives or friends without charge to public funds, not merely for a short period but for the foreseeable future; and

(ii) in the case of a child of school age, the effect of removal on his education; and

(iii) the practicality of any plans for a child’s care and maintenance in this country if one or both of his parents were deported; and

(iv) any representations made on behalf of the spouse or child.

In addition some training documents for the Casework Resolution Directorate from August 2009 were disclosed. These add little new. They refer to the parts of chapter 53 of the Enforcement Guidance and Instructions on delay in UKBA decision making and lengths of residence in the UK. There are a few snippets that do add a little extra clarification, although they should come as little surprise:

Marriage/relationship with British citizen or person settled in the UK likely to be significant

Family in country of origin will be weighed against connections in UK

Property, business and charitable activities in the UK can be supporting factors

Medical conditions are given some prominence as well:

Medical conditions

Psychiatric treatment or counselling

– Severity of the condition

– Reliance on individuals settled in UK

– Limited treatment or support available in the country of origin

– Duration of treatment

– Supporting medical evidence required

There is also some emphasis that representations should actually be considered, and some good material on delay which is far more complaint with the EB (Kosovo) judgment than the publicly available policy on this.


– Significant factor in CRD cases

– Delay often enables people to adapt to life in the UK and establish strong connections

– Delay may make a procedural requirement to apply for entry clearance inequitable

Administrative error

– Commonly causes delay – Particularly relevant where the error causes unfairness

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


One Response

  1. My 2004 submitted application was rejected following dismissal of my fresh application in 2005. in 2009 i was told my case in between CRD caes. In January 2010 my CRD case was also refused without any given reason. few month ago I was told by a lawyer that there is a ‘Lead case’ in high court which if it wins the court it might open a new window for refused cases. Just wondering if anyone else have heard such a thing.