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

A person who voluntarily leaves the United Kingdom cannot derive a legitimate expectation from selectively read policies that an earlier asylum claim will continue to be considered under the Legacy Scheme. Published policies must be read as a whole. Departure may terminate the continuing effect of the earlier claim and prevent it being treated as unresolved for Legacy Scheme purposes. Administrative transfer of a file to the Case Resolution Directorate, or later consideration by its successor, cannot create an expectation contrary to those policies and the claimant’s own known history. A judicial review based on alleged earlier delay must also be brought promptly; a challenge raised only after the decision under challenge may be out of time.

The claimant, an Iraqi national, entered the United Kingdom in 2003 and claimed asylum. His claim and appeal failed. After an unsuccessful removal attempt, he left the United Kingdom unlawfully for Belgium and was returned under the Dublin II arrangements.

His file was later sent to the Case Resolution Directorate and, following its closure, dealt with by the Case Assurance and Audit Unit. The Secretary of State granted three years’ discretionary leave to remain, but not indefinite leave. The claimant sought judicial review, arguing that his case fell within the Legacy Scheme and that delay and mishandling gave rise to a legitimate expectation of indefinite leave.

The central issue was whether his departure to Belgium ended the continuing effect of his earlier asylum claim for Legacy Scheme purposes.

1. The application was dismissed.
2. The published position was that an asylum claim was concluded if the claimant left the United Kingdom. Paragraph 34J of the Immigration Rules reflected that position, while section 104 of the Nationality, Immigration and Asylum Act 2002 provided that an appeal pending at departure was generally treated as abandoned.
3. Read together, the relevant policies showed that voluntary departure counted as conclusion of a Legacy Scheme case. The claimant’s departure to Belgium therefore terminated the continuing effect of his pre-2007 asylum claim and meant that he could have no legitimate expectation of consideration under the Legacy Scheme.
4. The letter stating that the file had been sent to the Case Resolution Directorate did not describe the case as an unresolved Legacy Scheme case or promise indefinite leave. It could not create a legitimate expectation contrary to the published policies and the claimant’s own history. The later grant by the Case Assurance and Audit Unit likewise could not convert the case into a legacy case.
5. Any complaint that the Secretary of State had been obliged to decide the case before the departure to Belgium was unsupported and, in any event, hopelessly out of time. The claimant also failed to show that proper handling of the case would have produced a better outcome. The grant of three years’ leave was an appropriate response to the circumstances as they stood when the decision was made.