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

Delay in considering an immigration case does not ordinarily create a legitimate expectation that the case will be decided under a withdrawn policy. In assessing conspicuous unfairness, the court may take account of clandestine entry, unlawful residence and attempts to avoid removal.

Under paragraph 353B of the Immigration Rules, the decision-maker must have regard to the specified factors when deciding whether exceptional circumstances make removal inappropriate. The court’s review is concerned with whether that duty was performed lawfully and rationally.

A fresh claim requires anxious scrutiny and a realistic prospect of success. The Immigration Rules do not exclude the possibility that removal may still breach article 8 in a small minority of cases, but the claimant must establish disproportionate interference with protected rights.

The claimant, an Albanian national, sought judicial review of the Secretary of State’s refusal to reconsider her case within the legacy-case review process. Permission had initially been granted on grounds of delay and an arguably unlawful failure to address the underlying claim.

After permission was granted, the Secretary of State rejected the claimant’s further submissions, refused to treat them as a fresh claim under paragraph 353 of the Immigration Rules, and considered the case under paragraph 353B rather than the deleted paragraph 395C.

The claimant alleged conspicuous unfairness, frustration of a legitimate expectation, errors in applying paragraph 353B, and irrationality in the assessment of her article 8 submissions. The central questions were whether the decision-making process was unlawful and whether the further submissions created a realistic prospect of success.

1. Legitimate expectation and delay. The claim that the claimant should have been considered under paragraph 395C failed. The Secretary of State was entitled to change the immigration policy, and the claimant had no legitimate expectation arising from the withdrawn provision. Her clandestine entry, unlawful residence and absconding to avoid removal were relevant to conspicuous unfairness and legitimate expectation. The delay was not so excessive as to be unlawful because it arose in the context of those attempts to avoid removal.
2. Paragraph 353B. Paragraph 353B requires the Secretary of State to have regard to the listed matters, including character, compliance with immigration conditions and time spent in the United Kingdom for reasons beyond the migrant’s control, when deciding whether exceptional circumstances make removal inappropriate. Proper regard was given to the relevant factors. The decision was therefore lawful and rational, even though another decision-maker might have reached a different conclusion.
3. Fresh claim and article 8. The Secretary of State had to apply anxious scrutiny under paragraph 353. The question was whether the further submissions created a realistic prospect that an adjudicator, applying anxious scrutiny, would allow the claim. The claimant’s removal would interfere with her private life, but interference alone was insufficient. Immigration control was a legitimate state interest, subject to proportionality and legality.
4. The court rejected the suggestion that Parliamentary approval of the Immigration Rules removed the possibility of success under article 8 outside the Rules. A small minority of cases might still succeed. The two-stage approach was applied: the claimant did not qualify under the Rules, and removal would not have a disproportionate effect on her article 8 rights. There was no tenable Wednesbury challenge. Permission on the amended grounds was refused and judicial review was refused on the existing grounds.