Kadyamarunga v Secretary of State for the Home Department

In a judicial review concerning a historic immigration application, the court must assess the claimant’s evidence positively, including its credibility, consistency and logic. A public-authority defendant must discharge its duty of candour and should not deny an asserted fact without an evidential basis. A non-admission leaves the claimant to prove the fact, but does not create a positive case requiring rebuttal.

Where the Secretary of State made a clear written commitment to decide an application by a specified date, failure to do so may create a legitimate expectation that the application will be assessed under the policy or rules applicable at that date. Administrative pressure and resource difficulties do not excuse non-compliance with judicial review procedure.

The claimant, a Zimbabwean national, challenged the refusal of her application for indefinite leave to remain under the Legacy programme. She asserted that, in 2006, the Secretary of State had sent a letter promising that her application would be decided by 20 July 2011. The application was not decided until October 2012 and was then refused under the later policy, although discretionary leave was granted.

The defendant initially sought to defend the claim out of time and denied sending the letter. The denial was amended to a non-admission, and the defendant conceded that, if the commitment letter had been sent, the claimant was entitled to assessment under the earlier rules and consequently to indefinite leave to remain. The central issue was therefore whether the letter had been sent.

1. Application granted. The claimant established, on the evidence, that the Secretary of State had made a formal commitment to decide her application by 20 July 2011. She was therefore entitled to an order granting indefinite leave to remain.
2. A public authority is subject to a high duty of candour. It must provide full and accurate explanations of the facts relevant to the issues for determination. A bare denial of a material fact is improper where the authority has no evidential basis for it. The loss of the claimant’s file meant that the defendant could not fairly infer from the absence of the letter that it had never existed.
3. The court must assess evidence positively. Relevant considerations included whether the claimant’s evidence was clear and unequivocal, supported by a Statement of Truth, properly challenged or tested in cross-examination, logically consistent, and corroborated or undermined by other evidence.
4. The claimant’s evidence was accepted cumulatively. It was clear and supported by a Statement of Truth; it was not meaningfully challenged; the decision recorded a 2005 application; the Legacy policy recognised written commitments to decide cases by 20 July 2011; and the explanation for the missing letter was plausible and corroborated by correspondence addressed to her former partner.
5. The general rule is that the decision-maker applies the policy in force when making the decision. An exception arises where an earlier unlawful act, failure to perform a duty, or clear promise has caused historic injustice. A promise to decide an application by a specified date may require assessment under the earlier policy or rules.
6. The defendant’s failure to serve an acknowledgement of service or defence promptly was profoundly unsatisfactory. Administrative pressure and lack of resources did not justify procedural default, although permission to participate was granted after the defence was amended and the issues narrowed without prejudice to the claimant.

First-instance judicial review in the High Court (Administrative Court). The judgment does not state any prior appellate decision.