R. v Secretary of State for the Home Department, ex p. Ofori

A long-residence policy may provide that 14 years’ continuous residence, lawful or unlawful, will normally lead to indefinite leave to remain. It does not create a rigid rule or remove the Secretary of State’s discretion to consider each case on its merits. In a deportation case, the Secretary may assess residence and other circumstances at the time the deportation decision was made and take account of the procedural history. Further time accruing during appeals does not, without more, require reconsideration under a different policy framework. Judicial review does not authorise the court to recast the policy as a binding rule.

The applicant, a Ghanaian national, entered the United Kingdom as a student in 1980. His leave expired on 31 July 1986, after which he remained as an overstayer. A minded-to-deport notice was served in July 1992. An adjudicator dismissed his appeal in September 1993, and the Immigration Appeals Tribunal refused leave to appeal in October 1993.

The applicant completed 14 years’ residence during the continuing deportation process. The Secretary of State signed a deportation order on 1 June 1994. Macpherson of Cluny J refused leave to apply for judicial review on 25 July 1994. The renewed application concerned whether completing 14 years required the Secretary of State to reconsider the case under a different approach and disregard the earlier unlawful residence.

The renewed application for leave was dismissed unanimously. Dillon LJ gave the leading judgment, with which Leggatt LJ and Hoffmann LJ agreed.

1. Nature of the policy. The long-residence policy was a discretionary policy outside the immigration rules. Although it stated that indefinite leave to remain should normally be granted after 14 years’ continuous residence of any legality in the absence of strong countervailing factors, it also required every case to be considered on its merits. It therefore did not create a rigid framework or an entitlement to indefinite leave.
2. Use of earlier policy authority. The court used the fuller policy statement recorded by Schiemann J in R v Secretary of State ex parte Ogunbodede [1993] Imm AR 28. The statement supported a merits-based approach, but did not require the Secretary of State to disregard the applicant’s immigration history once 14 years had elapsed.
3. Effect of the procedural history. The Secretary of State was entitled to consider that, when the deportation decision was made, the applicant had been resident for only about twelve and a half years. He could also consider the adjudicator’s assessment, including the conclusion that compassionate circumstances did not outweigh the public interest in deportation.
4. Passage of time during proceedings. The deportation process began with the minded-to-deport notice. After an unsuccessful appeal, a deportation order could be made, with no appeal against that order apart from the proposed place of removal. The additional time spent in the appeal and judicial-review process did not oblige the Secretary of State to reassess the case through a different policy framework. He was entitled to consider whether the later passage of time justified changing his original view.

It was not for the court, on judicial review, to make rules governing the application of the Secretary of State’s policy. The application was accordingly dismissed.

• Court of Appeal (Civil Division): renewed application for leave to move for judicial review dismissed; Dillon LJ gave the leading judgment, with Leggatt LJ and Hoffmann LJ agreeing. [1994] EWCA Civ 38
• High Court: Macpherson of Cluny J refused the applicant’s initial application for leave on 25 July 1994.