In a spate of very significant judgments last week, the long awaited legacy case has finally come out: Hakemi v Secretary of State for the Home Department [2012] EWHC 1967 (Admin). Nicola Braganza was led by Hugh Southey QC, both of Tooks Chambers. As many suspected we are still in the dark about a lot of the issues surrounding the Legacy, only today likened by the Home Affairs Select Committee to the infamous Bermuda Triangle. Many enter, few emerge…

Nevertheless the judgment does provide us with some guidance as to the specific criteria on which applicants were being either granted or refused leave. For example, it would seem caseworkers were being asked to look at whether a person was reporting, as well as length of residence and any representations made on the applicants behalf. We are reliably informed that Free Movement’s Freedom of Information request on Legacy criteria played a small part in this aspect of the proceedings, which is nice to know.

The situation seems to be that the Legacy criteria was being looked at in the context of both Paragraph 395C as well as Chapter 53 guidance, both famously vague and leaving huge discretion to the decision maker. Nothing ad hoc about the decision making process then! Although the inconsistency argument was not run in Hakemi, there were other legal challenges to specific parts of the legacy and the challenge to Pankina type arguments. These were specifically rejected.

Burton J in dismissing the cases of all four Claimants in Hakemi stated as follows:

In order for Mr Southey to take advantage of Pankina (and in particular Pankina as clarified in New London College) he must show that, without Parliamentary scrutiny (i) there has been a change to current practice as enshrined in a rule that had received Parliamentary scrutiny and (ii) such change involved an alteration of a substantive criterion for admission or for leave to remain. Rule 395C simply sets out factors which must be considered. Chapter 53 did not affect or fetter such considerations, or change them. It gave guidance by way of a very broad spectrum for residence (in the case of a single applicant, such as the Claimants) of 4 to 8 years. I say residence, because it is quite apparent that the reference in Chapter 53.1.2 in the last bullet point of (iv) to “delay” is not to a delay for which the Defendant is responsible, e.g. by way of delaying in dealing with the initial consideration, refusal (if such it be) and appeal, but to ‘delay’ by virtue of passage of time (see further paragraph 36 below).

It is worth noting that Burton J’s approach to Pankina seems more or less exactly that of the Supreme Court in Munir [2012] UKSC 32.

Despite Hakemi, there is nothing stopping applicants from running some Legacy type arguments in the courts. For example, it is clear from Hakemi that there remains scope for those who have been in the United Kingdom for the relevant period of six years, “all things being equal”, this being the halfway point between four and eight years. Since the first three claimants fell short of the six years (from entering the country to when CRD or CAAU dismissed their case under the Legacy), they were all ineligible under the criteria and so their claims were dismissed.

However, there seems to be an exception to what might otherwise be thought of as a ‘six year rule’. If there has been deception perpetrated on the Home Office, then it looks like one cannot benefit from a grant of leave. The fourth Claimant in Hakemi had been in the United Kingdom since as long ago as 1999 but had initially claimed to be a Kosovan national when in truth he was Albanian. His case was also dismissed.

Hakemi was run as a very specific challenge to the way in which the principles of Pankina (reaffirmed last week by their Lordships in Alvi and Munir) were applied. Hakemi has highlighted just one aspect of the SSHDs policy. I’m sure there will be other ways of challenging this seemingly “transparent” policy. I am currently challenging one such aspect: failure to grant ILR rather than DLR. I doubt this is the last word on the Legacy, either from the courts or the politicians.