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The Born Again Legacy ?
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Following an oral renewal hearing on permission, our colleague Ripon Akther, instructed by Waleed Hassan of Malik and Malik, and their client were granted permission by His Honour Judge Thornton QC in the Legacy case of R (on the application of Prenga) v SSHD  EWHC 1981 (Admin).
For further general background on legacy cases, see here and here. Additional analysis on the two other judgments from the High Court concerning legacy cases can also be found here (Re Hakemi) and here (Re Mohammed).
The Claimant in Prenga had applied for asylum in 1999 and been refused in 2001 but granted a short period of ELR. An application for an extension of ELR was refused in 2005 and ever since then, the Claimant and his legal representatives have made further representations. In 2010, the Claimant was informed that his case would be considered under the Legacy Programme but was not considered until much later in August 2012, when the UKBA refused the Claimant’s representations and refused to treat these as a fresh claim.
The main points of challenge raised by the Claimant are as follows:
- His case should have been considered in line with the SSHD’s practices and guidance which had been applied within the Case Resolution Directorate (‘CRD’) between August 2009 and July 2011.
- These practices and guidance essentially set out that those who had been living in the UK, whether legally or illegally, for at least 6 years should expect to be granted ILR unless they had a particularly bad record or adverse set of reasons to preclude a grant of ILR.
- Basic fairness should require that all those whose file had not been resolved or closed by the CRD when these migrated to the CAAU in July 2011 should be treated in the same way, and their decisions taken by application of the same rules, policies, principles and practices as those whose files were closed by the CRD prior to July 2011.
- Thus the Claimant had a legitimate expectation that his length of residence, of over 8 years, in the absence of any good and adverse reason to the contrary, would lead to a grant of leave to remain.
It was argued, and will presumably be argued even more fully at the forthcoming substantive hearing, that the system put into place in July 2011 was arbitrary and gave no consideration to the individual cases affected. There should have been, for example, transitional arrangements for the cases, like the Claimant’s, which remained unresolved in July 2011. The failure to implement such transitional arrangements was arguably unconscionable, unfair, unlawful, a breach of Article 8 ECHR, disproportionate, arbitrary and a failure to give effect to the legitimate expectation of those with outstanding open files.
It is apparent from the judgment that the Court is seeking to make sense, once and for all, of this masse of ‘legacy cases’. In no other area of immigration law has the lack of consistency and published guidance on the part of the UKBA been so stark. The SSHD even continues to argue that there is no such thing as a ‘legacy case’. For now, the High Court is tasked with fitting together the pieces of the puzzle but is also seemingly expecting many more years of litigation to follow. HHJ Thornton QC states at Paragraph 11 that:
Once the size and scope of the legacy problem has become clear, the legacy claim will probably need to be considered by the Court of Appeal and possibly by the Supreme Court.
However in the meantime, HHJ Thornton QC’s judgment on permission is useful to practitioners for setting out a chronology, which as well as detailing the facts specific to the Claimant’s case, incorporates ‘a legacy timeline’ of sorts, highlighting the relevant statements made by SSHD, the salient guidance from policy instructions and changes in practice. Bring on the substantive judgment!