Mohammed, R (on the application of) v Secretary of State for the Home Department

Paragraph 395C of the Immigration Rules required the decision-maker to weigh all relevant factors holistically. The listed factors were not threshold requirements, and long residence did not automatically require leave to remain. However, the Secretary of State was required to apply the published Chapter 53 guidance. Where that guidance treated six to eight years’ residence as potentially significant, a decision-maker had to consider the significance of long residence and weigh it in the balance against removal. Failure to do so made the decision unlawful. Following quashing, the current rules generally applied, but the decision-maker also had to consider whether the earlier unlawful decision, together with the intervening change in the rules, had caused an injustice requiring correction.

The claimant, a Sri Lankan national whose asylum claim had been refused, challenged the Secretary of State’s refusal to grant leave to remain under paragraph 395C. Her case had been dealt with within the legacy programme. The decision letter stated that removal remained appropriate, but did not show that the Secretary of State had consciously applied Chapter 53 of the Enforcement Instructions and Guidance, particularly its treatment of six to eight years’ residence as potentially significant.

The claimant also relied on alleged administrative errors, a legitimate expectation of a further decision, inconsistent treatment, and the later replacement of paragraph 395C by paragraph 353B. The central issues were whether the February 2011 decision was unlawful and, if quashed, how the claimant’s case should be reconsidered.

1. Permission and quashing. Permission to apply for judicial review was granted. The decision contained in the letter of 7 February 2011 was quashed as Wednesbury unreasonable.
2. Paragraph 395C. Paragraph 395C required a holistic assessment of all relevant factors. It did not create an automatic entitlement to leave on reaching any specified period of residence. Nevertheless, the Secretary of State was required to apply the published Chapter 53 guidance.
3. Long residence. The guidance indicated that six to eight years’ residence might be significant. Such residence was therefore a factor weighing against removal. In a legacy case involving more than ten years’ residence, the decision-maker had to consider consciously whether that period was significant and how it should be weighed. The letter merely recorded the period of residence and gave no indication that the guidance had been applied. The evidence did not establish that the caseworker had done so.
4. Other matters. The court rejected the alleged legitimate expectation of a further decision and found insufficient evidence of inconsistent treatment. The decision letter also incorrectly stated that no separate representations had been received, although this error was not the principal basis for quashing.
5. Reconsideration. The court could not substitute its own decision. The matter had to be remitted to the Secretary of State. The current rules, including paragraph 353B, applied in principle. However, the Secretary of State had to consider whether, applying paragraph 395C and Chapter 53 as they stood in February 2011, leave would have been granted, and whether the combination of the unlawful decision and subsequent change of rules had caused an injustice requiring correction.

This was a first-instance judicial review. The application proceeded by way of a rolled-up hearing directed by Singh J on 1 December 2011. Permission was granted by the present court and the challenged decision was quashed.