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

In legacy immigration cases, the applicable Immigration Rules and policy are ordinarily those in force when the decision is made. A consent order agreeing to consider further representations does not, without clear words, invalidate an earlier decision or require reconsideration under withdrawn rules or policies. Inclusion in the legacy programme creates no entitlement to indefinite leave to remain and does not require like treatment of materially different cases. A legitimate expectation requires a clear, unambiguous and unqualified representation. Where discretionary leave is granted under the applicable policy, adequate reasons may be given by identifying that policy and the exceptional circumstances framework. A change in policy is not conspicuously unfair merely because earlier cases received more favourable treatment.

The claimant, a failed asylum seeker from Turkey, challenged the Secretary of State’s decision to grant him three years’ discretionary leave to remain rather than indefinite leave to remain. His case had previously been considered under the legacy programme, and earlier judicial review proceedings were withdrawn under a consent order requiring consideration of specified further representations.

The claimant argued that the consent order invalidated or reopened the earlier decision, engaged an exception permitting indefinite leave, created a legitimate expectation, required consistent treatment with other legacy cases, and made the policy change unlawful. He also challenged the adequacy of reasons and relied on KA (Turkey) v Secretary of State for the Home Department.

1. Nature of the grant. The grant of leave was a question of fact. The letter of 11 June 2012 expressly stated that leave was granted in accordance with the Home Office Asylum Policy Instruction on Discretionary Leave. There was no proper basis for going behind that clear wording. The claimant was therefore granted three years’ discretionary leave under paragraph 353B and the applicable chapter 53 policy, rather than leave under article 8 or merely leave in line with his partner.
2. Effect of the consent order. The consent order required consideration of the claimant’s 31 August 2010 representations and any further representations. It did not state that the March 2011 decisions were withdrawn, invalid, erroneous or to be retaken. Nor did it require application of superseded rules or policies. The ordinary rule is that the rules and policies applied are those in force at the date of decision. Any departure from that rule required clear words, which were absent.
3. Second exception. The claimant could not rely on the exception for an erroneous earlier decision. The earlier decision had not been retaken, and the later decision was not based on the same evidence: significant evidence concerning the claimant’s relationship and partner arose after March 2011.
4. Consistency and expectation. The legacy programme created no new substantive rights and did not require all cases to receive the same outcome. Eleven bare comparator examples did not establish unlawful discrimination or conspicuous unfairness. A legitimate expectation also failed because there was no clear and unqualified promise, no established practice guaranteeing indefinite leave, and no demonstrated detrimental reliance.
5. Reasons and policy change. Legacy review decisions were not immigration decisions, reducing the requirement for detailed reasons. The decision letter adequately identified the applicable discretionary-leave policy and the basis for granting three years’ leave. The change from indefinite to limited leave was not shown to be unlawfully withdrawn. KA (Turkey) was materially different because it involved reliance on a clear and established practice that irreversibly altered the applicant’s position.
6. The claim was dismissed.

First-instance judicial review claim. The claim challenged decisions dated 11 June 2012 and 2 May 2013. The High Court dismissed the claim.