Hakemi & Ors v Secretary of State for the Home Department

Where the Secretary of State considers leave outside the Immigration Rules by reference to paragraph 395C, the listed factors must be considered holistically. Published guidance may explain how those factors are weighed without creating a new substantive eligibility criterion requiring Parliamentary scrutiny. Passage of time after an asylum claim and appeal rights have ended is not, without culpable delay in deciding the claim, delay attributable to the Secretary of State. A policy is sufficiently transparent where the published rules and guidance identify the relevant factors, require positive and negative matters to be considered, and permit representations. An applicant need not be given an interview or questionnaire in every case, provided there has been a fair opportunity to submit relevant material and the decision is reasoned.

Four judicial review claims challenged refusals made through the Home Office Legacy Cases process. The claimants argued that the Secretary of State had unlawfully changed the policy on residence without Parliamentary scrutiny, failed to publicise relevant aspects of the policy, treated applicants unfairly by discouraging progress enquiries, failed to take account of delay in enforcing removal, denied them an opportunity to make representations or be interviewed, and gave inadequate reasons.

The decisions were made under paragraph 395C of the Immigration Rules and Chapter 53 of the Enforcement Instructions and Guidance. The central questions were whether the guidance created an unlawful substantive criterion, whether the policy was sufficiently published, and whether the individual decisions were procedurally unfair or inadequately reasoned.

1. All four claims dismissed. The court held that paragraph 395C of the Immigration Rules required consideration of relevant factors, but did not prescribe a fixed residence threshold. Chapter 53 supplied broad guidance, including a range of approximately four to eight years for single applicants, while preserving a holistic assessment of all positive and negative factors. It therefore did not alter a substantive criterion for leave and did not engage the Parliamentary-scrutiny principle in Pankina v Secretary of State for the Home Department [2011] QB 376, as clarified in R (New London College Ltd) v Secretary of State for the Home Department [2012] EWCA Civ 51.
2. The published policy was sufficiently transparent. The rules and Chapter 53 identified the relevant factors, stated that the list was non-exhaustive, required consideration in the round, and expressly included representations received on the applicant’s behalf. The principle in R (Lumba) v Secretary of State for the Home Department [2011] 2 WLR 671 was therefore not breached. The distinction between discouraging routine progress enquiries and permitting further information or fresh submissions was neither unfair nor inconsistent.
3. Delay after an asylum claim had been decided and appeal rights exhausted was merely the passage of time, not delay attributable to the Secretary of State. Only culpable delay in deciding the original claim, of the kind recognised in HB (Ethiopia) v Secretary of State for the Home Department [2006] EWCA Civ 1713, required consideration as such. The guidance lawfully required compliance and non-compliance to be weighed in the round.
4. The individual decisions lawfully considered the claimants’ fresh submissions under paragraph 353. Each claimant had an opportunity to provide material; one was interviewed. No general duty required an interview or questionnaire. The decisions were fully reasoned, and no arguable fresh claim or public-law error was established.