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

Inclusion in the legacy asylum backlog did not create an expectation of a grant of leave or a repeated review. The programme required cases to be reviewed and resolved by granting leave or initiating removal. A decision refusing leave and confirming that removal was appropriate was therefore a legacy decision, even though removal had not yet occurred.

A legitimate expectation depends on whether a promise was clear, unambiguous and free from relevant qualification, assessed in context and from the viewpoint of a reasonable recipient. A misleading administrative letter did not create such an expectation where the claimant knew that his case had already been decided.

Consideration under paragraph 353B of the Immigration Rules is a final check before removal and need not repeat earlier reasoning where no new relevant factor has arisen.

The claimant, a Cameroonian national whose asylum and human rights claims had been refused, challenged the Secretary of State’s handling of his case under the legacy programme for unresolved asylum cases.

His case had been reviewed by the Case Assurance and Audit Unit. On 19 April 2011 the Secretary of State refused his further submissions, declined to treat them as a fresh claim and concluded that removal remained appropriate. A letter dated 31 July 2011 stated that the case was one of a small number awaiting a final decision and indicated that a decision would be notified by the end of August where possible.

The claimant alleged unlawful delay, a legitimate expectation of a further legacy decision, and inadequate reasons for a later decision dated 30 May 2012 under paragraph 353B of the Immigration Rules. The central issues were whether a further legacy decision was required and whether the paragraph 353B decision was legally adequate.

1. Legacy programme. The programme involved reviewing cases and deciding whether leave should be granted or removal should proceed. Inclusion in the programme created no additional expectation of leave. A person who had received a decision refusing leave and confirming that removal was appropriate had received the relevant legacy decision, even though the practical process of removal remained incomplete.
2. The claimant’s decision of 19 April 2011 had considered the valid further submissions and concluded that removal remained appropriate. The removal decision of 30 March 2007 consequently remained in force. The claimant had no entitlement to a further legacy review.
3. Legitimate expectation. The question was whether the 31 July 2011 letter contained a promise which, on a fair reading and in its context, was clear, unambiguous and devoid of relevant qualification. Reliance was not essential, although reliance could be relevant to whether a promise could be withdrawn in the public interest. The claimant and his solicitors knew that his case had already been decided and that only removal remained. The letter therefore created no legitimate expectation of a further legacy decision.
4. Paragraph 353B. Consideration under paragraph 353B was a final check before removal, following earlier consideration of the claimant’s claims and submissions. The decision-maker needed to address the limited factors in that paragraph, but need not repeat earlier findings unless a new relevant factor had arisen. The 30 May 2012 decision adequately addressed character and conduct, compliance with reporting conditions, and whether the claimant’s residence had been beyond his control.
5. The reasons were intelligible, accurate and legally sufficient. The claim for judicial review failed and was dismissed.

First-instance judicial review proceedings in the High Court. Permission was initially refused by HHJ Alice Robinson sitting as a deputy judge on 15 March 2012. Permission was renewed before John Howell QC, sitting as a deputy judge, on 13 June 2012; the legacy and delay grounds were regarded as arguable. The claim was subsequently dismissed by the High Court.