Hamzeh & Ors v Secretary of State for the Home Department

The Legacy Programme created no substantive entitlement to leave and was operational only. Cases were to be decided individually under the law and policy in force when they were considered. A refusal of leave, followed by notification that removal would take place, could constitute a concluded legacy decision even if removal was delayed.

Under paragraphs 395C and 353B of the Immigration Rules, and chapter 53 EIG, removability is a relevant factor but neither a condition precedent nor a determinative factor. The assessment must be holistic. Non-compliance, absconding and dishonesty may substantially outweigh residence and delay. Difficulty in enforcing removal does not, without more, require a grant of leave or establish an Article 8 breach.

Five Iranian failed asylum seekers challenged decisions and continuing inaction under the Legacy Programme. They argued that the programme required their cases to be concluded by removal or a grant of leave, that present difficulties in removing them to Iran entitled them to leave, and that the Secretary of State had failed to apply paragraphs 395C or 353B and chapter 53 EIG lawfully.

Mr Hamzeh’s claim also concerned whether his earlier departure to the Netherlands had concluded his legacy case. Mr Abdullahi challenged the adequacy of reasons. The remaining claims were principally permission applications concerning removability, delay, residence and Article 8.

1. Disposition. The applications failed. Mr Hamzeh’s judicial review claim was dismissed. Mr Abdullahi’s claim failed to the extent permission had been granted and permission was refused on the remaining grounds. Permission was refused in the cases of Mr Nejad, Mr Jaffar and Mr Ahmadi.
2. The Legacy Programme was operational only. It created no amnesty, substantive right or separate basis for leave. The Secretary of State was entitled to apply the law and policy in force when each case was considered, and cases had to be decided on their individual merits. An aspiration to resolve the backlog did not create a binding public-law commitment to grant leave or remove by a particular date.
3. A legacy decision could consist of a review concluding that leave was inappropriate, notification that removal would take place, and commencement of the removal process. The fact that enforcement was delayed did not mean that the case remained unresolved or create a legal right to leave.
4. Paragraphs 395C and 353B assume liability to removal. They require relevant exceptional, compelling or compassionate factors to be considered, but do not make removability a condition precedent. Chapter 53 EIG required a holistic assessment. Character, compliance, residence, delay and the prospects of enforcing removal had to be considered in their proper sequence and weight. Current difficulty in enforcing removal was neither paramount nor sufficient by itself to justify leave.
5. Illegal entry, failure to report, absconding, dishonesty and other non-compliance could weigh heavily against a discretionary grant. Residence accrued during absconding or other non-compliance was unlikely to assist. A decision-maker was not required to refer expressly to chapter 53 EIG or every listed factor if the guidance had been considered and applied.
6. The claim that irremovability created an Article 8 entitlement failed. Article 8 did not confer a right to reside in the country of choice. The claimants had not shown that voluntary departure was practically impossible or that established private or family life outweighed immigration control. The late Article 3 argument was not permitted and was in any event unsupported.
7. The decisions were to be judged when made and on the material then before the decision-maker. The Administrative Court should not conduct a rolling review of removability. Any deficiency in reasons justified intervention only where it disclosed an error of law capable of affecting the outcome.

First-instance judicial review proceedings concerning five linked claims. The judgment records earlier decisions of the Secretary of State and procedural permission rulings, but no appeal from a lower court.