Legacy Cases _ Case Law Update

By Author: Shwan Sharif
Total Articles: 2
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Mohammed, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 3091 (Admin) (02 November 2012)

This case was a so-called ‘legacy case’, in which the claimant’s asylum claim was made before 5 March 2007 and had still to be resolved.

The claimant arrived in the UK from Sri Lanka in December 2001. The visa she stayed on expired in April 2002. She remained in the UK and applied for asylum. The SSHD rejected the claimant’s asylum claim. By September 2003 the claimant had exhausted her appeal rights. In 2004 the claimant applied for indefinite leave to remain in the UK on the basis that she had worked in the British Consulate in Sri Lanka for 11 years. Her application was rejected and she was detained ahead of removal in August 2006. She made a fresh claim for asylum and applied for judicial review. Permission for review was refused in November 2006.

In September 2009 the claimant asked the SSHD to consider a fresh claim for asylum and a claim based on Articles 2, 3 and 8 of the European Convention on Human Rights in light of her belief ...
... that she would be detained by the Sri Lankan authorities if she were returned there because of her involvement with the LTTE (TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049).

The claimant also made representations based on Paragraph 395C of the Immigration Rules. The representations engaging Paragraph 395C were the subject of the judicial review at the hearing in question in the High Court. The claimant requested a number of times over the next year or so that a decision be made in her case, and that her case be moved up the queue. The SSHD refused to examine the case out of turn.

In a letter dated 11 February 2011 the UK Border Agency (UKBA) on behalf of the SSHD wrote that the claimant’s asylum and human rights claims were unfounded and that there were no reasons under Paragraph 395C to grant her compassionate leave to remain in the UK.

The letter contained anomalies, such as references to the claimant’s private life in China (as opposed to Sri Lanka), which raised questions as to whether the claimant’s case had been properly considered. An automatically generated letter was sent to the claimant after February 2011 to say that a decision still had to be taken in the claimant’s case. However, the judge found that the claimant did not rely on this, but continued to refer to the decision letter of 11 February 2011.

Before a removal decision under section 10 of the Asylum and Immigration Act 1999 is taken, the decision-maker should consider for guidance the relevant matters set out in Paragraph 395C of the Immigration Rules in order to determine whether removal was appropriate. However, Paragraph 395C is not to be read as a list of ‘requirements’ which the claimant has to meet in order to remain in the UK (TE (Eritrea) [2011] EWCA Civ 811).

From 13 February 2012, Paragraph 395C was replaced with Paragraph 353B. The considerations the decision-maker might address in making a removal decision under s. 10 of the 1999 Act are narrower. The question thus arose in the instant case, if the decision to remove the claimant from the UK dated 11 February 2011 was quashed and so fell to be re-made by the SSHD - should the SSHD follow Paragraph 395C, which was in place at the time of the unreasonable decision, or the new guidance under Paragraph 353B?

The removal decision in the instant case was quashed by the Judge on the basis that the UKBA had not taken into account Chapter 53, which is the SSHD’s own guidance to be considered by UKBA decision-makers when assessing claims under Paragraph 395C. Whether or not it would be possible to arrive at a decision to remove having considered Chapter 53, the Court found that it had not been used to weigh the claimant’s residence of 10 years in the UK in the balance.

It was not for the Court to re-make the decision or to direct the SSHD to grant leave to remain, but only to hold that the decision to remove – on the grounds it was made - was Wednesbury unreasonable. As such the decision was remitted to the SSHD to be re-made. Having weighed the competing principles that the unfairness of the original unlawful decision had to be corrected, but also that administrative decisions should be made based on the ‘legal and factual context prevailing at the time the [subsequent] decision is made’ (Nadarajah, per Laws LJ at para. 46, the Judge held that the decision to remove was to be re-made under the new guidance.

The Judge held further that even though the new guidance under Paragraph 353B was narrower, allowing for fewer considerations of compassionate grounds not to remove, it would still be possible to reach a fair decision which took into account the claimant’s circumstances and the general delay over the period of 10 years during which she was resident and claiming asylum in the UK.

At Descartes Solicitors, our experienced lawyers can assist you whether you are making an initial or fresh application, whether you have been refused and wish to exercise a right of appeal or even where you have been denied a right of appeal.

For further information on how we can help, please contact us on 0207 569 3035 or alternatively email us at info@descartessolicitors.co.uk