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New policy in old ELR cases

New policy in old ELR cases

I tried, but I just couldn’t think of a good title for this post. This is a follow up to an earlier post about some secret Home Office policies, some of which have now been published.

A week or so ago, the Home Office published one of these previously secret policies drafted in response to a case called R (S) Afghanistan, in which judgment was given over a year ago now. I guess the Home Office have had a few other things on their minds.

The policy is on the face of it surprisingly generous. R (S) was about an Afghan who had entered the UK at the same time as his cousin in 1999. His cousin had been granted four years of Exceptional Leave to Remain (ELR), in line with the policy back then not to return anyone to Afghanistan. This was back in the heady, humane days that followed on the heels of the Human Rights Act being passed. Who would ever have thought we’d look back on Jack Straw as a liberal Home Secretary? The policy was scrapped in 2002, along with all the other ELR policies to grant status purely on the basis of nationality. These policies were considered to be too much of a ‘pull factor’ and were thought to encourage some asylum seekers to lie about their nationality. There was never any research published to support the thesis – as with so much Home Office policy since 1999, it was someone’s gut instinct.

Returning to the matter in hand, the cousin is now settled, as it was normal for Indefinite Leave to Remain (ILR) to be granted after four years. However, S himself was not so fortunate. His claim was, to cut a long story short, lost down the back of the very large sofa they must keep at Lunar House (Home Office immigration HQ) for this very purpose. In fact, someone deliberately put it down the back of the sofa, because old cases were put on ice in order to meet government time targets for new cases. By the time a decision was reached on S’s case, it was 2004 and there was no longer a policy to grant status to Afghans. His application was turned down and he then lost his appeal.

The Court of Appeal decided this was a ‘textbook’ example of unlawful fettering of discretion. The Home Office had delayed S’s case purely to meet Treasury-imposed Public Sector Agreement targets and thereby deprived him of the benefit of a policy to which he would otherwise have been entitled. In non-lawyer speak, it was just plain unfair.

The Home Office’s response is not to seek to limit the effect of the judgment, as normal in such situations, but to grant status to as many potentially affected people as possible. To summarise, that includes:

1. Anyone from a country which on 1 January 2001 had an ELR policy attached to it (see the policy itself, but that includes Angola, Afghanistan, Burundi, Iraq (not the Kurdish north, though), Liberia, Rwanda, Sierra Leone and Somalia; and

2. Who made an asylum claim before the policy was cancelled (different dates for different countries between late 2001 to early 2003); and

3. Who has been refused asylum or is now to be refused asylum; and

4. Who isn’t to be turned down for committing crimes in the UK and suchlike.

Even people who were later granted ELR of less than four years and were therefore not eligible for ILR can apply under the policy.

Is this out of the goodness of Jacqui Smith’s heart? Not likely. It is a clever way of clearing the decks of quite a few of the 500,000 or so (OK, probably less than that now) outstanding Legacy cases. There should be quite a few Afghans and Somalis out there who will benefit from this new policy.

Free Movement

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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