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

The Legacy Programme was an operational process for reviewing unresolved immigration cases. It created no substantive rights, amnesty or distinct policy. A refusal of leave, notified after review, may constitute the applicant’s legacy decision even though removal has not occurred.

Decision-makers must assess the relevant factors under paragraph 395C of the Immigration Rules holistically. Length of residence, delay and the practical prospect of removal do not require the grant of leave and may carry little or no weight where adverse matters, such as deception or non-compliance, are present. No general “limbo” policy requires leave for an undocumented person who cannot presently be removed.

The claimant entered the United Kingdom illegally, claimed asylum, and remained after his asylum appeal and subsequent representations were refused. His further representations were rejected on 29 March 2011, with the Secretary of State concluding that he should leave. Supplementary refusal letters were issued in August 2013.

By judicial review, the claimant argued that his case had not been concluded under the Legacy Programme, that the 2011 decision had failed to apply the relevant criteria, that the 2013 letter was defective, and that his inability to obtain documents placed him in unlawful “limbo”.

1. Application dismissed. The claimant had received a valid legacy decision on 29 March 2011. The Legacy Programme involved review and division of cases between those suitable for leave and those liable to removal. It did not require actual removal before a case was concluded, nor did it create an entitlement to a further decision.
2. The court followed and applied the reasoning in R (Che) v SSHD [2013] EWHC 2220, R (Geraldo) v SSHD [2013] EWHC 2763, R (Hamzeh) v SSHD [2013] EWHC 4113 and R (Jaku) v SSHD [2014] EWHC 605. The programme was operational only. The ordinary law and policy applicable across immigration cases governed the claimant’s position.
3. The 29 March 2011 decision addressed the paragraph 395C factors as part of a holistic appraisal. Length of residence was considered, but was not sufficiently compelling when assessed with the claimant’s absence of lawful status and non-compliance. Delay did not require weight to be given to it because the relevant conditions in Chapter 53 of the Enforcement Instructions and Guidance were not met. The evidence of deception and reporting failures also weighed against the claimant.
4. There was no requirement under paragraph 395C to assess removability in the manner argued. The reference to removal prospects in Chapter 53 operated only within the specified conditions and did not require leave where removal was difficult. The 2013 decision was not unlawful for substantially the same reasons.
5. The factual challenge was outside the permission granted and, in any event, did not establish a clear, objectively verifiable and material error. No legal basis or applicable “limbo policy” required the Secretary of State to document or grant leave to an undocumented person. The Article 8 argument also failed: no relevant family life was shown and refusal of leave was proportionate to immigration control.