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

When considering whether removal should be pursued under the legacy policy, the Secretary of State must conduct a holistic assessment of the relevant factors, including length of residence, the reasons for that residence, delay attributable to the authorities, personal history, connections, domestic circumstances and compassionate circumstances.

The decision-maker need not tabulate every factor or provide separate reasons for each one. The essential requirement is that the decision shows that the guidance was applied, that material considerations were taken into account and that the conclusion falls within the lawful range of discretion.

The claimant sought judicial review of a decision refusing leave to remain under the legacy programme and refusing to treat his representations as a fresh claim. He relied on legitimate expectation, Immigration Rules paragraph 395C, article 8 of the European Convention on Human Rights, irrationality and delay.

Permission was granted on the narrow issue whether the Secretary of State had given adequate reasons showing that she had considered Enforcement Instructions and Guidance, chapter 53, particularly the significance of the claimant’s period of residence. The court considered the decision letters and the claimant’s immigration history, including unlawful residence, adverse credibility findings and alleged administrative delay.

1. The claim was refused. The Secretary of State’s decision was within her rational discretion and had been made on correct legal principles.
2. Chapter 53 cases begin from a policy of removal. The question is whether the relevant factors provide sufficient reason to justify allowing the person to remain. The exercise is holistic and must be conducted in the round.
3. The relevant considerations included age, length of residence, whether residence resulted from non-compliance or departmental delay, personal history, strength of connections with the United Kingdom, domestic circumstances and compassionate circumstances. Length of residence, particularly where much of it was unlawful, was not automatically decisive.
4. The decision-maker was not required to reproduce chapter 53 in a table, address every factor separately or provide a separate reason for each consideration. It was sufficient that the evidence showed that the guidance had been applied and that all material factors had been considered.
5. The decision letter clearly explained why the claimant’s unlawful residence, limited integration, lack of cogent evidence of compassionate or other special features, and persistent disregard of immigration law did not justify departing from removal. The application for judicial review was therefore refused.

This was a first-instance judicial review. Permission was granted by Stadlen J on 5 December 2012. The Administrative Court refused the claim.