Geraldo & Ors, R (on the application of) v Secretary of State for the Home Department

A later immigration decision is ordinarily assessed by the law, policy and facts current when it is made. A claim that policy change caused historic injustice requires more than administrative delay or conspicuous unfairness. There must have been a prior illegality, a sufficient causal connection between that illegality and the alleged injustice, and prejudice relevant to the decision under challenge. The legacy programme created no separate substantive entitlement to indefinite leave to remain. Parliamentary statements that unresolved cases would be dealt with within five years or less were aspirational objectives, not binding commitments. The court cannot direct the Secretary of State to grant indefinite leave under the general discretion in section 4(1) of the Immigration Act 1971; at most it may quash and remit an unlawfully made decision.

Three failed asylum seekers challenged decisions granting them three years’ discretionary leave outside the Immigration Rules rather than indefinite leave to remain. Their cases belonged to the legacy programme for older unresolved asylum claims. They argued that the Secretary of State had unlawfully failed to consider their cases before 19 July 2011, when the prevailing practice was to grant indefinite leave where removal was inappropriate, and had then failed to correct the resulting historic injustice. They also sought to argue that the legacy programme itself required indefinite leave and that the July 2011 policy change was unlawful. The central issues were whether delay or the alleged ministerial timetable involved illegality, whether the programme created a substantive entitlement, and what remedy was available.

1. Claims dismissed. The decisions granting three years’ discretionary leave were lawful. Each claimant’s case was to be assessed by the law, policy and facts current at the date of decision. The applicable policy in 2012 therefore provided the proper framework.
2. The historic-injustice jurisdiction requires a prior illegality, a sufficient causal connection between that illegality and the alleged injustice, and prejudice caused by the decision under challenge. Mere administrative delay, maladministration or generalised unfairness is insufficient. The claimants could not show that failure to decide their cases by 19 July 2011 was unlawful.
3. The statements made by Dr Reid to Parliament in July 2006, that the legacy of unresolved cases would be dealt with within five years or less, were objectively aspirational. They did not amount to a clear and unambiguous binding promise to conclude or even consider every case by 19 July 2011. The claimants therefore had no enforceable expectation of that timetable.
4. The legacy programme was operational. It created no amnesty, no separate substantive policy and no entitlement to indefinite leave. Cases were to be decided on their individual merits under the prevailing law and policy. The earlier practice of granting indefinite leave where Chapter 53 of the Enforcement Instructions and Guidance led to removal being inappropriate did not prevent later policy change.
5. Administrative delay may justify an order requiring a decision in an appropriate case, but it cannot by itself justify replacing the policy applicable when the decision was eventually made. The court had no power to order the Secretary of State to grant indefinite leave under section 4(1) of the Immigration Act 1971. If an unlawful exercise of discretion had been established, the appropriate remedy would generally have been quashing and reconsideration.
6. Permission was refused for the late challenge to the lawfulness of the July 2011 policy change. The proposed ground was introduced too late, depended on uncertain evidence about the number of unreviewed cases, and would have caused unfairness and legal uncertainty.

First-instance judicial review claims in the Administrative Court. The judgment records no appeal.