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

A legacy asylum case does not create an amnesty or an entitlement to leave merely because the claimant falls within the legacy programme or has accrued residence in the United Kingdom. The Secretary of State’s duty is to consider the case under the law and policy applicable at the time.

Administrative delay does not, by itself, make a later decision unlawful where that decision properly applies current policy. A claim based on delay must be assessed in its factual context, including the claimant’s compliance with reporting conditions and the nature of the subsequent review.

The claimant, an Indian national and failed asylum seeker, challenged the Secretary of State’s alleged failure to regularise his stay under the legacy programme and alleged excessive delay. Judicial review proceedings were issued in 2012, permission was granted in 2013, and the Secretary of State refused to regularise his stay on 7 October 2013.

The claimant accepted that he could not succeed at first instance in light of earlier Administrative Court decisions, but reserved his position on their correctness and sought a judgment suitable for a possible appeal. The issues were whether the legacy programme created an entitlement or legitimate expectation of leave, and whether delay made the Secretary of State’s decision unlawful.

1. The claim was dismissed. The court held that the earlier legacy authorities, including R(Geraldo) v Secretary of State for the Home Department [2013] EWHC 2703 (Admin), R(Hamzeh) v Secretary of State for the Home Department [2013] EWHC 4113 (Admin) and R(Jaku) v Secretary of State for the Home Department [2014] EWHC 605 (Admin) were rightly decided and answered the claimant’s complaints.
2. The legacy programme was not an amnesty. Inclusion within its terms did not give rise to an entitlement to indefinite leave or other leave. The Secretary of State’s obligation was to consider the claimant’s case under the law and policy applicable at the time.
3. The claimant had no legitimate expectation that leave would be granted merely because he had been present in the United Kingdom for six years. Residence accrued while he failed to comply with reporting requirements did not justify a favourable legacy decision.
4. Administrative delay alone did not readily establish unlawfulness requiring corrective intervention in relation to a subsequent decision properly based on current policy. On the facts, there was no unlawful delay. The claimant had received an initial asylum decision, had failed to report for many years, and had subsequently received a detailed review and letter.
5. R(Mohammed) v Secretary of State for the Home Department [2014] EWHC 1405 (Admin) was not in point. The claimant had not challenged the letter of 7 October 2013, which showed that his period of residence had been considered, although it was not regarded as supporting a favourable legacy decision.
6. The court also considered it inappropriate to endorse a draft order dismissing judicial review proceedings without considering the claim or giving judgment, since that would prevent proper consideration of any application for permission to appeal.

The claim was issued on 13 October 2012. Permission to apply for judicial review was granted on paper by His Honour Judge Thornton QC on 25 June 2013. The Secretary of State made the impugned decision on 7 October 2013, and the Administrative Court dismissed the claim after a substantive hearing.