SH (Iran) & Anor v Secretary of State for the Home Department

The legacy programme was an administrative arrangement for resolving a backlog of asylum and immigration cases. It created no special policy, substantive right or legitimate expectation beyond consideration under the law and policy applicable when the individual case was decided.

There was no binding commitment to conclude every legacy case by actual removal or by a grant of leave. A refusal of leave, coupled with notification that removal would follow and the beginning of the removal process, was a valid legacy decision. Delay or maladministration alone did not justify leave to remain; illegality required conspicuous unfairness. Nor did an inability immediately to enforce removal create an entitlement to leave.

The court considered five linked applications for permission to appeal and the appeal of BA (Ethiopia). All concerned unsuccessful asylum seekers whose cases had been within the legacy programme administered first by the Casework Resolution Directorate and later by the Case Assurance and Audit Unit.

Simler J had dismissed the judicial review claims of SH and NA and refused permission to AN, SJ and BA (Iran): [2013] EWHC 4113 (Admin). Lewis J had refused BA (Ethiopia) permission to apply for judicial review: [2013] EWHC 3334 (Admin).

The central issue was whether the Secretary of State had made a binding commitment to conclude a legacy case only by granting leave to remain or effecting actual removal, so that a person not removed had to be granted, or considered for, leave.

Appeal dismissed; five applications for permission to appeal refused. Davis LJ, with whom Christopher Clarke and Aikens LJJ agreed, upheld Simler J and Lewis J.

1. The legacy programme was an operational scheme to address a backlog. It did not create a discrete or more favourable immigration policy, an amnesty, or additional substantive rights. Legacy cases were to be decided under the generally applicable law, policy and guidance in force when the decision was made, including the relevant Immigration Rules.

2. The evidence disclosed an aspiration to deal with unresolved cases, not a clear and unambiguous binding commitment to conclude every case by a particular date or in a particular way. There was therefore no legitimate expectation that a person would receive leave if actual removal was not achieved.

3. “Conclusion” did not mean actual removal or a grant of leave. Once a case had been reviewed, leave refused and the individual notified that removal would follow, a valid legacy decision had been made and the removal process had begun. Subsequent delay in enforcing removal did not reopen or prevent conclusion of the legacy case.

4. Delay and maladministration alone were not unlawful and could not found an entitlement to leave. The exceptional principle in Rashid and R (S) required conspicuous unfairness amounting to illegality. There was also no policy that a person whose removal could not presently be enforced should, for that reason alone, receive leave.

5. BA (Ethiopia)'s additional reliance on an asserted six-month representation could not succeed. Further correspondence showed that her case was under further consideration, and there was no basis for appellate intervention.

Davis LJ stated that these issues were settled. Aikens LJ added that repetitive legacy claims wasted public money and judicial resources and should be examined with the closest scrutiny.

• Court of Appeal (Civil Division) — dismissed BA (Ethiopia)'s appeal and refused the five related applications for permission to appeal: [2014] EWCA Civ 1469.
• Administrative Court — Simler J dismissed the judicial review claims of SH and NA and refused permission to AN, SJ and BA (Iran): [2013] EWHC 4113 (Admin).
• Administrative Court — Lewis J refused BA (Ethiopia) permission to apply for judicial review: [2013] EWHC 3334 (Admin).