The UK Home Office and The Unfinished Business of Legacy Cases: A state of limbo
Posted on 3rd April 2019 at 11:13
By George Tizirai-Chapwanya
Solicitor at CB Solicitors
Many asylum and humanitarian applicants remain in limbo as they do not know what happened to their legacy cases. What constitutes legacy cases was aptly summarised in the Court of Appeal decision, SH (Iran) and another v Secretary of State for the Home Department 2014 EWCA Civil 1469 under paragraph 5 of the judgment of the court delivered by Davis LJ as follows:
“The Legacy programme …..Was set up to deal with a vast backlog of cases that had by 2006 been identified. In respect of applications made prior to 5 March 2007 which had not been disposed of – several hundreds of thousands – responsibility for dealing with such cases was transferred to the Casework Resolution Directive (CRD). Many of those potentially within the programme were liable to removal, having previously exhausted their appeal rights. Many (although by no means all) sought thereafter to lodge fresh submissions and representations. By mid 2011 there were still over 100,000 cases remaining to be disposed of: albeit a very significant proportion of those related to cases here contact had been lost with the applicant or where there were other difficulties, causing such cases to be transferred into what was called the controlled archive were transferred for resolution to a new unit called the Case Assurance and Audit Unit (CAAU).”
It is noted that the court acknowledges that by 2011 over 100,000 remained to be disposed of. In this article I intend to argue that a lot more cases remain unresolved up to this day. These are matters affecting real people and not just a matter of faceless files being pushed around. A lot of undocumented immigrants in the United Kingdom today suffer from both physical and mental anguish simply because they have not had a closure to matters they had been assured will be resolved one way or the other. It must however be emphasised that when the Home Office indicated that it will resolve legacy cases by 2011 that did not mean a positive resolution for everybody, in the sense of a grant of stay. But then indications were that all those whose legacy matters were pending would at least receive a response, either positive or negative. What appears to have happened is that the Home Office failed to resolve the legacy cases as promised and the Courts have regrettably ruled that this chapter is now closed.
The article written by Harry Mitchell, Honorary Counsel to Migration Watch dated 4 December 2014 under Ref: Legal: MW349: makes some interesting observations in this regards. It notes that the Court of Appeal decision, SH (Iran) and another v Secretary of State for the Home Department 2014 EWCA Civil 1469, has sought to put an end to a series of cases on Legacy decisions in asylum applications. In reference to legacy cases to which this matter related the court held:
“The common issue…arising on these …applications 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…say there was and is: accordingly, they say, because none of them has been removed, each is entitled to, or at least to be considered for, a grant of leave.”
The Court of Appeal decisively rejected these arguments and made the following points:
The Legacy programme was never intended to be an amnesty and statements to that effect were made by the then Secretary of State at the time when it was announced.
Mere delay in dealing with particular applications cannot of itself give rise to any expectation or entitlement that relief should be granted. “Delay and maladministration…are…not to be equated with unlawfulness.”
Public law in the context of immigration and asylum recognises a doctrine of legitimate expectation, which may create an enforceable right which would not in the normal course arise. Thus for example, an undertaking by an entry clearance officer in a British embassy abroad concerning rights of entry to the United Kingdom in response to a particular application made locally, based on a misunderstanding of the relevant Immigration Rules, might be held to create an enforceable right. But in a Legacy case, the only legitimate expectation of an applicant is that he will have his case considered in accordance with the law and policy in force at the time of the relevant decision.
The Court further held that:
“… there is no room for argument that these applicants…are to be treated as entitled to a grant of leave to remain simply because they otherwise (so it is said) will be left in a state of indefinite limbo. True it may be that there have been times when (for example) it has not proved possible for undocumented Iranians to be removed to Iran. But it does not follow that that will always be the case, and………there at no stage has been in existence a policy that those whose removal from the United Kingdom cannot be enforced should for that reason be granted leave…..Numerous judicial review applications have been brought in recent years advancing similar arguments in relation to Legacy cases. All have been rejected and the judgment of the Court of Appeal in this latest case makes it clear that any further attempts will be similarly unsuccessful.”
The judgment ends with a clear warning,
“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.”
However with due respect to his Lordship, whereas the Home Office did not commit to grant leave to all those cases falling under legacy it definitely committed to removal of the applicant from the United Kingdom should there be no grant of stay. The reason I hold this to be the case is because of its commitment to resolve legacy cases by 2011. My argument is that the deadline meant, either an applicant was granted or refused by that date. Refusal of grant would automatically trigger removal from the United Kingdom. So implicitly there was that commitment by the Home Office to make a decision on each legacy case by 2011, so that where there was refusal removal for the failed legacy applicant would follow. In the premises the Home Office’s decision to literally abandon Legacy cases without making decisions in pending cases, is in my view open to challenge on the basis of the failure by a public body to uphold the commitments it made.
The injustice of the court’s approach is apparent if the observations of The Independent Chief Inspector of Border and Immigration dated March-July 2012 and Titled: “An inspection of the UK Border Agency’s handling of legacy asylum and migration Cases” is taken into account. In a Foreword to his report, the following is observed:
In 2006, the then Home Secretary made a commitment that the UK Border Agency ‘must deal with’ the legacy of unresolved asylum cases no later than the summer of 2011. The Case Resolution Directorate (CRD) was subsequently created in 2007 to ‘conclude’ these cases. At the time, a ‘conclusion’ was generally understood to mean that an applicant would either receive a grant of Indefinite Leave to Remain (ILR) or be removed from the UK. Cases would also be considered as concluded because of data errors, duplicate records, or because applicants could not be traced.
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.
The Inspector actually confirms that the conclusion of matters by the Home Office meant either a grant or removal from the United Kingdom. So it would appear that the warning from the Court might be informed by the Government’s increasing reluctance to avail public funding for such cases. However does it mean this is the end of legacy cases? Since the signal has come from the Court of Appeal it appears the obituary of legacy cases has already been written. So what is there for those left in limbo? For those who were affected it is suggested that making a fresh asylum or humanitarian claim may be the alternative. As I have said before if you are not returning to your home country, advise the Home Office why you cannot do so, instead of just staying undocumented in the United Kingdom without any pending request. Do something today and contact your legal representative to take you through the available options.
George Tizirai-Chapwanya, BL (Hons) LLB LLM is a Solicitor with CB Solicitors. He can be contacted on firstname.lastname@example.org; or visit CB Solicitors’ website at www.cbsolicitors.co.uk; Mobile: 07950529478
Disclaimer: This article only provides general information on immigration law. It is not intended to replace the advice or services of a Solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of use of this information.
Tagged as: Legacy Cases
Share this post: