Archives For Legacy

20130123-205557.jpgIn asylum cases it is still referred to as The Legacy, as if it were a second rate Spagetti Western. In immigration cases it has the more prosaic title of the ‘migration refusal pool’. The UK Border Agency’s inspectorate has today [update: link to report here] unveiled yet more cases abandoned by immigration officials, this time of complex spouse and marriage cases dating back as far as 2003. The files were sitting unopened in boxes until the inspectors asked what was in them. How has this well publicised backlog arisen?

Well, even if you ASK the UK Border Agency to remove you they STILL won’t do it. The relevant instruction to immigration officials for a lot of these backlog cases reads as follows:

You must not make a removal decision at the same time as refusing leave to remain in these cases, other than in asylum cases. The applicant is expected to leave the UK voluntarily when the application is refused.

The instruction goes on to tell officials that it is only in exceptional cases that a request to be removed should lead to a removal decision. The criteria for making one of these rare removal decisions is said to be:

  • the refused application for leave to remain included a dependant child under 18 who has been resident in the UK for three years or more
  • the applicant has a dependant child under the age of 18 who is a British citizen
  • the applicant is being supported by the UK Border Agency or has provided evidence of being supported by a local authority (under section 21 of the National Assistance Act 1948 or section 17 of the Children Act 1989), or
  • there are other exceptional and compelling reasons to make a removal decision at this time.

For immigration lawyers trying to help clients understand the topsy turvy world of the UK immigration ‘control’, this perhaps explains why some applications for judicial review intended to secure a removal decision do so and others do not. It is a topic that the blog has covered several times previously and which has repeatedly troubled the higher courts. The reluctance of the UK Border Agency is perhaps partially explicable by the fact that a removal decision would trigger a right of appeal. If the appeal was unfounded or raised repeat points it can be certified, though, and avoiding conferring an ability to challenge a decision through the tribunal system hardly seems like a sound reason for failing to take action against those the Agency purportedly would rather were somehow, miraculously, gone from these shores.

It would seem that the government quietly abandoned attempts to enforce immigration control some time ago. Instead a private company, Capita, using nothing more than the faulty data held on UK Border Agency systems, have now been contracted as bounty hunters to do what immigration officials could or would not do.

Thanks to ILPA (again) for highlighting the policy.

UKBA post room

Carrying on from FM’s open season article last week, it is clear that immigration lawyers are getting a hard time of it at the moment: first it was judge bashing and now the lawyers are in the firing line. The pernicious pastime of naming and shaming the legal profession needs to stop. Fearlessness is needed for us to do our jobs properly, particularly those of us representing  or judging vulnerable migrants, a group even lower in the public’s esteem than politicians. That is made just a little bit harder where there is a risk of judgment in the kangaroo court of public opinion.

Under attack themselves, we have seen the judges in turn criticising claimants and their lawyers. What of the Home Office, though? The Chief Inspector of the UK Border Agency last week published a damning report on the UK Border Agency’s handling of old asylum cases. The report highlighted how the Home Office has mismanaged the “legacy” fiasco, of which regular blog readers will no doubt be aware. In short, in 2006 the Home Secretary promised that unresolved asylum “legacy” cases would be dealt with by July 2011 either by granting Indefinite Leave to Remain (ILR) or removing a person. There was in addition to this, a list of factors against which cases would be considered and prioritised accordingly (or not).

In his damning report, Chief Inspector John Vine said the following:

I found that the transition of work from the Case Resolution Directorate to the new Case Assurance and Audit Unit was poorly managed. The volume of the remaining work to resolve legacy cases was not anticipated by the new unit. As a result, CAAU was quickly overwhelmed by the casework and the associated high levels of correspondence from MPs, legal representatives and applicants. I have commented previously about the importance of effective governance during major business change initiatives. I was therefore disappointed to find that a lack of governance was again a contributory factor in what turned out to be an extremely disjointed and inadequately planned transfer of work. Such was the inefficiency of this operation that at one point over 150 boxes of post, including correspondence from applicants, MPs and their legal representatives, lay unopened in a room in Liverpool.

In addition Mr Vine also noted that the legacy cases were far from being concluded, stating specifically that the UKBA had resiled from their aim of concluding these cases by either granting leave or removing:

As with many of my previous inspections, I identified that customer service outcomes were poor. I found significant opportunities to improve both general correspondence handling and complaints handling.

Mr Vine also notes that the delay caused by the backlog has and is continuing to have serious repercussions for those waiting in this system.

The UK Border Agency has been caught lying to Parliament, allowing a backlog of 100,000 unopened letters to build up and dismally failing to deliver on general and case specific promises to decide cases by set deadlines. Legacy lawyers and litigants caught up in the whole shambles have long known there was arbitrary chaos behind the bland Agency assurances. Media coverage has been appropriately coruscating. The judicial response… has been tolerant and trusting in case after case.

The one case so far in which a higher court judge has found in favour of a Legacy litigant is Mohammed, in which Deputy High Court Judge Stephen Morris QC found that the failure to apply published policies in respect of promises made under Paragraph 395C was deemed unlawful. This and the new Chief Inspector report perhaps provide legal ammunition for re-opening the argument that the Legacy decisions made by the Agency are unacceptable and unlawful.

Legacy case WINS!

Ripon Akther — 

A long residence

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 discretionto 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 13th 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]

New Legacy judgment

Ripon Akther — 

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.

Is it a bird, is it a plane or…is it in fact a policy?  Now the UKBA would vigorously deny this, they would deny that there is any kind of amnesty at all.

However, the evidence would point to the contrary.

Essentially prior to July 2011 if you had claimed asylum before the 5th March 2007 and your case was regarded as “unresolved” ie there is still some action pending; you would get a response on your case. A grant of Indefinite Leave to Remain (ILR) would usually follow, or you would be removed. The majority of such decision making usually led to a grant of ILR.

Now one may well wonder what the criteria for such a grant is…and that is where we have been left slightly bemused.

There is obviously some kind of criteria in order to enable caseworkers at UKBA to either reject or accept a claim under the legacy. However, we are being asked to believe that considerations of such cases, even despite long residence (which seems to be the underlying theme) are case specific….random some may well think.

If some applicants are granted leave and other similar cases are not and inherently there is no justification does this not smack of arbitrariness? One wonders therefore whether the right hand knows what the left hand is actually doing.

What does seem to be apparent is that legal challenges in this area do now seem to be taken seriously. There are many ways to scrutinise the decision of the UKBA to refuse a case under the legacy; a refusal of ILR, delay in the consideration of case or the decision to grant Discretionary Leave (DL) rather than ILR, are just some of the legal challenges in the Administrative court at present. There is a test case due to be heard substantively at the Administrative Court on the 2nd and 3rd July. Watch this space…

Rules...

The Government has finally gotten around to amending the Immigration Rules to make them a bit less human rightsy looking. This follows a number of pledges from David Cameron, Theresa May and Damian Green to do so. Paragraph 395C of the rules is to be deleted, as predicted here on Free Movement some time ago. It is, though, a futile exercise in window dressing. The rule has benefitted not a single person as far as I am aware and the UK’s human rights obligations are unaffected by the change.

The amendment is being brought into effect by Statement of Changes HC 1733 and will come into effect on 13 February 2012.

Paragraph 395C at the moment reads as follows:

395C. Before a decision to remove under section 10 of the Immigration and Asylum Act 1999 or section 47 of the Immigration, Asylum and Nationality Act 2006 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.

The paragraph has been the subject of a huge amount of litigation, including the Mirza and Sapkota cases, both previously covered here. However, that litigation has been almost entirely pointless as far as I can determine. With one important caveat, I can myself think of not a single case where paragraph 395C affected the substantive outcome of the case. The factors to be considered are essentially identical to those that must be considered under Article 8 of the European Convention on Human Rights anyway. And no amendment to the Immigration Rules can alter in any way the UK’s obligations under the Convention.

The caveat is that the rather shady Legacy backlog clearance exercise was carried out under the auspices of paragraph 395C. The UK Border Agency was always very careful not to disclose any policy on how Legacy cases were to be decided, and even a Free Movement Freedom of Information request only disclosed scraps of information. I’ve heard that a test case on the consistency or otherwise of Legacy decision making is listed to be heard later this month and will bring further news if/when I hear any.

The real loss would be if the Enforcement Guidance and Instructions were amended. At the moment chapter 53 does quite a good job in parts of reflecting the UK’s human rights obligations. The relevant parts fall under the section on 395C. If that section is deleted and not replaced then it will lead to further litigation as UKBA officials ignore human rights and those who are able have to pursue court action to secure enforcement of their rights.

A new paragraph is also being inserted at paragraph 353B in relation to fresh asylum and human rights claims:

353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant’s:

(i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;

(ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;

(iii) length of time spent in the United Kingdom spent for reasons beyond the migrant’s control after the human rights or asylum claim has been submitted or refused;

in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate.

Additional information on the ILPA website is available here for members in which it is clearly stated in terms by the UK Border Agency that the changes to the rules do not amount to a change in policy and that chapters 51 and 53 to the EGI remain in force.

As a footnote for the lawyers, Statement of Changes HC 1733 additionally makes provision for future online applications for Tier 2 and Tier 5 of the Points Based System.

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.

Delay

- 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

[UPDATE 31/3/11: see Comments below for further information and updates]

This interesting snippet of information recently came my way and I thought it was worth sharing. A Freedom of Information request recently revealed outcomes to the Legacy backlog clearance exercise:

  • Number of cases granted Indefinite Leave to Remain = 145,843
  • Number of cases granted Discretionary Leave to Remain = 3,405
  • Number of cases granted Humanitarian Protection = 430

This information is said to be accurate up to 19 January 2011. As the programme is now closed, as I understand it, these will be the final figures.

The total number of cases for consideration was thought to be around 450,000. That number was also thought to include a very considerable number of duplicate case files. In 2008 it seemed that a quarter of all cases thus far concluded had been closed for this or other ‘error’ reasons. The most recent official update from UKBA that I can find is from February 2010 and stated that 235,000 cases had been ‘concluded’ up to the end of December 2009. It therefore seems that a significant proportion of all cases considered under the Legacy programme were allowed in one way or another, but by no means all. This matches with the experience of practitioners, as far as I am aware.

UKBA has laid Statement of Changes CM7929 to give effect (or, at least, limited effect) to the judgment of the Supreme Court in ZO (Somalia) [2010] UKSC 36.

This was the case in which the Court held that an asylum claim is still an asylum claim for the purposes of the Reception Directive whether it is an initial claim or a subsequent claim. One of the consequences of this interpretation is that where UKBA fail to make a decision on a subsequent claim for asylum (usually called fresh claims, see this earlier post for some pointers on this subject) for 12 months or more, the applicant for asylum must be give access to the labour market, subject to some potential conditions.

Well, the conditions have been announced and the only jobs for which asylum seekers kept waiting for 12 months or more will be able to apply are those on the shortage occupation list maintained by UKBA, usually for the purposes of Tier 2 (general) applications in the Points Based System. This mainly consists of doctors, nurses and engineers but still includes ballet dancers, I see. Meteorologists are no longer required, apparently.

New paragraph 360 also states that UKBA will only consider applications for permission to work where the asylum claimant has not contributed to the delay in reaching a decision. No further meaning or explanation is provided here. In the vast majority of cases the delay is entirely caused by UKBA sitting on such cases for sometimes years on end, so this is a bit rich.

Self employment or setting up a business are both prohibited.