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

Consideration under the Legacy Programme does not create an entitlement to indefinite leave to remain or an amnesty. The Secretary of State retains a broad discretion and must assess each case holistically, having regard to relevant positive and negative factors. Length of residence is relevant but is not, by itself, decisive. Where an applicant has remained unlawfully and deliberately evaded the immigration authorities, the Secretary of State may treat that conduct as substantially reducing the weight of residence. A decision is not necessarily unlawful for failing to give reasons where the Legacy process merely confirms the existing immigration position. Where discretionary leave is considered, however, the decision must address the material factors relied upon and explain the conclusion reached.

The claimant, a Turkish national, entered the United Kingdom in 2004 and unsuccessfully claimed asylum. He did not appeal, obtain further leave, or maintain contact with the immigration authorities, and was recorded as an absconder. Following his solicitors’ representations, his case was considered under the Legacy Programme. He challenged an initial refusal letter, arguing that he was entitled to indefinite leave to remain and that the decision lacked adequate reasons.

Permission was granted only on the issue whether sufficient reasons had been given for refusing discretionary leave, including any relevant Article 8 considerations. The Secretary of State subsequently reconsidered the case and issued a reasoned refusal.

1. The claim was dismissed. The decision was not flawed and the claim was certified as totally without merit.
2. The Legacy Programme was established to process historic asylum cases. It did not constitute an amnesty and did not confer an automatic right to remain merely because a person had lived in the United Kingdom for a particular period. The Secretary of State retained a broad discretion. The court applied the approach explained in Hakemi v SSHD [2012] EWHC 1967 (Admin).
3. Although paragraph 395C of the Immigration Rules had no direct application because the claimant was an illegal entrant, its listed considerations, and the guidance in Chapter 53 of the UKBA Enforcement Instructions and Guidance, were relevant guidance for the discretionary assessment. The assessment had to be holistic and take account of both positive and negative factors.
4. The relevant considerations included age, length of residence, strength of United Kingdom connections, personal history, domestic circumstances, criminal record, compassionate circumstances and representations made on the applicant’s behalf. Length of residence alone did not ordinarily require a grant of indefinite leave.
5. The Secretary of State was entitled to attach little weight to the claimant’s residence because, after his asylum claim was refused, he did not appeal, contact the authorities or regularise his position and was an absconder for several years. The later refusal letter expressly considered his seven years and three months’ residence and explained why it was not sufficiently compelling.
6. The claimant had been given an opportunity to make further submissions after permission was granted but did not do so. In the circumstances, no material consideration had been omitted and the reasons given were sufficient.