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

The legacy programme was operational and created no freestanding right to a decision by a particular date, indefinite leave to remain, or consideration for more favourable leave where temporary leave already existed. The Secretary of State had to follow the applicable policy when deciding the application, but the decision was governed by the policy in force at the time it was made.

The post-20 July 2011 exception permitting indefinite leave to remain for correction of an earlier erroneous adverse decision was narrow. It required an earlier decision that leave under Chapter 53 was inappropriate, a reconsideration of that decision on the same evidence, and a conclusion that it was wrong. A record that an individual was not removable because existing leave remained did not satisfy those requirements.

The claimant, an Afghan national, had received discretionary leave to remain in 2008. His case was reviewed by the Casework Resolution Directorate in February 2011, when it was recorded that he was not removable because his leave remained valid. He was later granted a further three years’ discretionary leave on 8 March 2012.

He sought judicial review, arguing that the earlier handling of his case had been erroneous and that the exception in the Defendant’s post-20 July 2011 policy required indefinite leave to remain. In the alternative, he relied on the Rashid line of authority concerning historic injustice. The central issue was whether the earlier review and the 2012 decision engaged the policy exception or disclosed a public law error.

1. Claim dismissed. The claim challenged the decision of 8 March 2012, by which the claimant was granted discretionary leave for three years. The court found no failure to follow policy and no public law error warranting relief.
2. The Secretary of State was ordinarily required to act consistently with her declared policy and to explain any departure from it, applying R v Secretary of State for the Home Department, ex p Gangadeen [1998] Imm AR 106 and R (Lichfield Securities Ltd) v Litchfield District Council [2001] 3 PLR 33. The lawfulness of the 2012 decision fell to be assessed under the law, policy and facts existing when it was made, following Ravichandran v SSHD [1996] ImmAR 97.
3. The legacy programme was operational only. It created no amnesty, freestanding substantive right, or right to a decision by 20 July 2011. The claimant therefore had no right to positive consideration for indefinite leave merely because his file had been called up, and the February 2011 record was not an unlawful decision to refuse indefinite leave.
4. The policy exception was narrow and highly circumscribed, as explained in Tamsanqa Nzangane v SSHD [2014] EWHC 555 (Admin). It required an earlier decision before 20 July 2011 that a grant of leave under Chapter 53 of the Enforcement Instructions and Guidance was inappropriate, followed by reconsideration on the same evidence concluding that the earlier decision was wrong. The February 2011 note merely recorded that the claimant was not removable because he had extant leave. The March 2012 decision concerned a new application to extend that leave and did not reconsider the earlier decision on the same evidence.
5. The Rashid argument also failed. The claimant had not established illegality in the earlier decision, as required by R (Rashid) v SSHD [2005] EWCA Civ 744 and the subsequent authorities. Generalised unfairness arising from a policy change could not justify intervention, applying R (S, H & Q) v SSHD [2009] EWCA Civ 334.

First-instance judicial review. Permission to proceed was granted on 13 August 2013 by John Bowers QC, sitting as a Deputy High Court Judge. The substantive claim was dismissed.