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

Immigration decisions should ordinarily be determined under the law and policy in force when they are made. Inclusion in an operational legacy programme does not, without more, give a migrant a right to continued application of an earlier and more favourable regime.

In considering exceptional circumstances under Immigration Rules, the prospects of removal are relevant. However, practical difficulty in enforcing removal does not by itself require discretionary leave. The decision-maker may take account of voluntary return, cooperation in obtaining documents, and whether any obstacle is self-induced. Time spent as an absconder may properly receive less weight. Delay, destitution, or poor health do not alone compel leave outside the Rules.

These combined applications concerned refusals to grant, or to consider granting, leave to remain outside the Immigration Rules.

Five Iranian applicants in Hamzeh challenged the treatment of their cases under the legacy programme and the Secretary of State’s exceptional-circumstances policy. Simler J dismissed two claims and refused permission in the other three: [2013] EWHC 4113 (Admin). An Iraqi Kurd in Mohammed and an Algerian national in Ghlam separately challenged refusals to exercise the same discretion.

The common issues were whether the legacy programme required a case to end in removal or a grant of leave, whether earlier rules remained applicable, and whether asserted irremovability, residence, delay, health, or non-compliance required discretionary leave.

1. Disposition. The court refused permission in Mohammed. In Hamzeh, it refused the remaining grounds but directed that the legacy-programme conclusion issue be heard on a rolled-up basis with the pending Aberaham appeal. In Ghlam, it refused permission on all issues other than that identical issue, which it stayed pending Aberaham.
2. Legacy programme and current policy. The court regarded the reasoning in Geraldo—that the July 2006 commitment was aspirational and did not create enforceable legal obligations—as persuasive, but did not finally decide the identical conclusion issue because it was shortly to be argued elsewhere. It nevertheless held that applicants within the legacy programme had no right to be assessed under historic rules or guidance. Immigration cases should, wherever possible, be decided under the law and policy current at the date of decision. The programme did not create a separate class entitled to a more favourable regime.
3. Removal and discretionary leave. Paragraph 353B required the Secretary of State to take account of the prospect of removal. It did not create a policy requiring leave whenever enforced removal was presently difficult. The Secretary of State could take account of the fact that voluntary departure remained possible, that travel documents could be obtained, and that obstacles to removal had been caused by the migrant’s own conduct or non-compliance.
4. Individual grounds. The asserted three-year delay in deciding Mohammed’s asylum claim did not, without resulting Article 8 rights or other significant hardship, require leave. The Secretary of State could give less weight to Ghlam’s residence while he was an absconder. Destitution and non-acute ill-health did not by themselves require exceptional discretionary leave. Sir Stanley Burnton agreed and added that inability of the Secretary of State to enforce removal did not show that a migrant was unable voluntarily to leave the United Kingdom.

• Court of Appeal (Civil Division). The court disposed of the combined permission applications as stated above: [2014] EWCA Civ 956.
• High Court, Queen’s Bench Division, Administrative Court — Hamzeh. Simler J dismissed the substantive claims of two applicants and refused permission to the other three: [2013] EWHC 4113 (Admin).
• High Court, Administrative Court — Mohammed. Judge Raynor QC refused permission on the papers. Phillipa Whipple QC refused the renewed application after an oral hearing.
• High Court, Administrative Court — Ghlam. Judge Sycamore refused the renewed permission application after the Secretary of State had reviewed the case. Laws LJ then refused permission to appeal on the papers.