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Legacy cases “laid to rest” by Court of Appeal


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Back in 2006, even before this blog first began and in the aftermath of his predecessor’s resignation, then Home Secretary John Reid declared that his department was “not fit for purpose”. A huge backlog of some half a million cases had been uncovered and the department would aim to deal with this “legacy”, one way or another, within five years. Since then the immigration functions of the Home Office have been farmed out to a separate agency, brought back in house and, as with its malformed parent, the Legacy somehow staggers on like an extra in a bad zombie flick. Plus ça change.

zombie-156055_1280A huge amount of litigation has been generated by the Legacy legacy and several silks have been involved. I think I am right in saying that all but one of these cases has failed. The latest case is SH (Iran) & Anor v Secretary of State for the Home Department [2014] EWCA Civ 1469 (12 November 2014), in which Davis LJ in the Court of Appeal sets out the key issue:

The common issue, and the principal (although not sole) issue, arising on these various applications and this appeal can be formulated in this way: was there an obligation, in the form of a commitment, on the part of the Secretary of State to “conclude” cases falling within the legacy programme relating to asylum cases either by the grant of leave to remain or by effecting the removal of the applicant from the United Kingdom? The Secretary of State says there was and is no such commitment. The applicants and appellant say there was and is: accordingly, they say, because none of the applicants and appellant has been removed each is entitled to, or at least to be considered for, a grant of leave.

The judgment then reviews the myriad cases and concludes that there was no promise, no policy, no commitment and no unlawfulness.

zombie-156055_1280So far, so clear. Irritatingly, though, much seems to be made of the difference between an amnesty and an “operational programme”, with Davis LJ holding that the Legacy was the latter. What, though, in the name of the English language, is an “operational programme” and why have the courts allowed to let themselves be caught up in such bureaucratic non language? The words provide an unwelcome insight into the tortured brains of Home Office officials but the courts would do better to avoid such linguistic illusions.

Davis LJ concludes:

I add a footnote. The position with regard to legacy cases on these particular points is now to be taken as laid to rest. There have been many decisions in the last two years on the salient points, all of which are in substantial accord. There is no separate legacy “policy”. There is no basis for relying on delay as, in itself, a ground for obtaining leave to remain. There is in the ordinary case no relevant legitimate expectation, other than that the case will be considered on applicable law and policy at the time the decision is made. There is no basis for saying that there is a commitment on the part of the Secretary of State to “conclude” a case either by effecting actual removal or by granting leave to remain.

He goes on to warn that any future claims attempting to litigate these arguments should be dealt with robustly. Christopher Clarke and Aikens LLJ agree, with the latter going a little further:

Judges will firmly dismiss any further claims in legacy cases that attempt to repeat arguments (however disguised) that the courts have already been comprehensively rejected. But the point goes further. Attempts to advance such claims are a waste of public money and scarce judicial resources. All those advising clients have a duty to examine any further potential legacy claim with the closest scrutiny.

If that doesn’t kill the Legacy cases, what will?

The legal team is considering applying for permission to appeal to the Supreme Court.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


10 Responses

  1. The idea that the executive can promise to do something in 5 years, not have done it after 8 years, and then have the judiciary threaten lawyers with personal payment of costs for having the temerity to suggest that it should have been done, would be dismissed as paranoia in any other context than immigration.

    1. I agree with Mr. Philip Thomas’s comments. Even if reluctantly one has to concede that the Public Law Principle of Legitimate expectation is not engaged because there was no policy, surely the Public Law Principle of FAIRNESS remains relevant and needs to be addressed. It offends one’s sense of fairness that legacy cases remain undetermined. Fairness is the corner stone of British Justice (dating back to the Magna Carta) and arguably there is a blatant breach of Section 6, Article 6 of the ECHR/HR Act 1998 if issues of fairness are not addressed.

  2. It is also worth noting that there will continue to be a seperate category of clients who were in the legacy whose casework is handled by Liverpool (OLCU) and who have to make any further submissions in Liverpool in person. If the legacy was really dead and buried, the OLCU would be closed and the cases redistributed to the regional caseworking teams to be dealt with as any other failed asylum seeker.

  3. I would go for challenge. Way back in the 1994 period it was accepted by the HO if they did not deal with a case in 7 years then ILR would be granted. Let the past not be forgotten there is a precedent here of sorts.

  4. Excellent post, as ever. As a side note, I’m in favour of avoiding talk of the Home Office having “farmed out to a separate agency” its immigration functions in the era of the late, non-lamented UK Border Agency. To the best of my knowledge, UKBA was never an “agency” in the technical sense, and this point was made to its staff by the Home Affairs Subcommittee. UKBA was simply a department of the Home Office: calling it an “Agency” was exactly the same sort of imaginary reform as was “closing it down”. Pre- during and post- UKBA we have by and large the same people doing the same jobs in the same ways. The various changes may have involved some re-organisations in higher management, but I can’t see any of this has affected the Home Office’s day-to-day operations in immigation matters, at least from the point of view of their “customers”. The essential point is there is no legitimacy in any claims that the Home Office’s mishandling of immigration matters was not its own fault, but that of an “agency” that had got out of control: the UKBA was never anything but part of the Home Office.

  5. Well, the question raised by the Court of Appeal is: what counts as dealing with a case?

    If there are any Legacy cases still out there in which the original application/fresh claim has not yet been decided at all, then there is a very good argument that there has been unconscionable delay and a grant should follow. It is an argument that has been fought and won already for a significant number of cases – sometimes by threat of litigation or actual litigation and early Home Office concession (Hence Colin’s figure of only one case being won that actually reached trial, while accurate, is not the whole story: the Home Office pick their battles and in this particular (legacy) field they seem to have some skill in doing so).

    But the Court of Appeal was dealing with cases where the Home Office had made a decision- dealt with the case in a fashion- by deciding to refuse leave/the fresh claim. They had not however made the further decision to remove. And there is precedent that they can’t be forced to do that…

    If we ever get the new human rights appeal rights implemented for “legacy” cases then some of them could be resolved by human rights appeals. Otherwise I guess we just wait until 2026, at which point all legacy cases will be subject to the 20 year rule :)

  6. In response to Davis LJ in the Court of Appeal and his conclusions, I would ask him to first comment in his determination:

    -Case of Arben Shala vs SSHD [2003] EWCA Civ 233, the Court of Appeal made it clear that delay was a vital factor in deciding the issue of proportionately when family life is involved.

    -In Akaeke vs the Secretary of State [2005] EWCA Civ 947, the Court of Appeal observations as follows:
    In normal circumstances the requirement for the maintenance of immigration control would require the applicant to return to R, irrespective of whether her application for entry would be successful or not. The temporary disruption to her family life would be justified by the need to maintain public confidence in the fairness of the system overall. The delay in the instant case demonstrated such a breakdown in the system of immigration control that the tribunal was entitled to find that confidence was unlikely to be materially improved by maintenance ofa rigid policy of temporary expulsions.

    -Unreasonable delay in progressing immigration application could it self make it necessarily disproportionate, where there was reliance on European convention on Human Rights 1950 Article 8, to return illegal entrants to their native country for the purpose of renewing an application for entry, even where the delay had not caused substantial prejudiced. The immigration appeal tribunal with its background of day to day experience was better placed than the courts to judge whether a departure from the ordinary policy approach was justified.
    The above view was reiterated by the Honorable High Court in the recent case of Ajoh vs SSHD [2006] EWHC 1489 (Admin). Mr. Justice Collins at Para 10 ‘There seems no excuse for the 2 years delay in dealing with the Claimant’s application for the leave to remain and the lapse of time means that the Article 8 claim may have more substance.’
    At paragraph 14Mr. Justice Collins further states ‘The Secretary of State must appreciate that it is essential in these matters that he makes decisions within a reasonable time unless there is a good excuse for not doing so. I appreciate of course that there is considerable pressure upon the Secretary of State and upon the Home Office in dealing with claims. But the pressure as I recall, was not so acute in 2003 as it had been in the years before then, although undoubtedly there was a pressure. Nevertheless, it is quite wrong that this sort of delay, without any explanation, without any contact with the claimant who was making the application, should be permitted. It produces a situation which is unfair to the claimant and in my judgment, following the approach to Akaeke, can be sufficient and is, in the circumstances of this case, sufficient to render a decision to remove unlawful. It is clear to me that in the circumstances it would not be proportionate to remove because it would be, on the face of it, merely a temporary removal to enable an application to be made from Jamaica and then considered, one hopes within a reasonable time, and a decision reached. That exercise seems to me to be quite unnecessary to maintain proper immigration control where the Secretary of State himself has been guilty of this sort of inordinate and inexcusable delay.’

    To conclude, Davis LJ in the Court of Appeal ‘s determination is more political then legal determination.

    1. I’m not sure the argument from delay pure and simple has been properly pleaded: the arguments addressed are all to do with the specific nature of the legacy programme. And again, if you have a case where there has been a delay of more than say, 5 years without a decision* being made, you can probably win your case without even having it reach a hearing.

      *including decisions to refuse applications but not remove.