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Legacy cases “laid to rest” by Court of Appeal

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.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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