Mohamed, R (On the Application Of) v Secretary of State for the Home Department

Membership of the legacy programme did not create a general entitlement to indefinite leave to remain. The relevant question was whether the case had been considered under the law and policy in force when the decision was made.

A legitimate expectation required a clear and unambiguous promise. Delay or an earlier defective decision did not establish historic injustice where the defect had been remedied and the delay was not unlawful. A decision-maker was not required to give reasons for declining to exercise a residual discretion reserved for exceptional cases unless the facts arguably engaged that exceptionality. Granting limited leave was therefore neither unfair nor irrational.

The claimant, a Palestinian national whose case had entered the legacy programme, received a letter indicating that leave to remain would be granted subject to final security checks. He was later refused leave, but that decision was withdrawn. A fresh decision granted 30 months’ limited leave.

He sought judicial review, contending that the legacy programme entitled him to indefinite leave, that delay and the earlier defective decision created historic injustice, and that the defendant had failed to explain why indefinite leave was not granted. He also sought to amend the claim to challenge the duration of the leave.

1. Adjournment. The application to adjourn pending a possible appeal in R (Geraldo) v SSHD was refused. The Court of Appeal’s guidance in AB (Sudan) v SSHD indicated that stays should generally be granted only where necessary in the interests of justice. That threshold was not met: the claimant retained leave until December 2015, the hearing was already listed, and he could make concessions while preserving any appeal.
2. Amendment. Permission to add a claim that leave should have been granted for three years was refused. The point was entirely new, had not been raised in correspondence or pleadings, and was advanced almost nine months after the relevant decision.
3. Legacy programme. The court followed R (Geraldo) v SSHD and the subsequent authorities cited in the judgment. No clear and unambiguous promise created a legitimate expectation of determination by a particular date or of indefinite leave. The claimant was entitled only to have his case considered under the law and policy applicable when the decisions were made.
4. The only specific promise was to grant leave in line with the current Immigration Rules, subject to security checks. The initial refusal had been remedied, and the leave ultimately granted accorded with the Rules applicable at the relevant decision dates.
5. There was no historic injustice. The delay was not unlawful, and the defective first decision had been corrected. No requirement existed to give reasons for declining a residual discretion reserved for exceptional cases, and the facts did not arguably approach that threshold. The grant of limited leave was consequently neither unfair nor irrational.
6. The judicial review claim was dismissed. Consequential orders were left for agreement or, failing agreement, written submissions.

First-instance judicial review proceedings. The judgment records possible appeals in other legacy cases, but no appellate history for this claim.