Moussaoui v Secretary of State for the Home Department

The legacy programme created no substantive entitlement to leave. A review undertaken to determine eligibility for asylum support was not, without more, an immigration decision to grant or refuse leave.

Historic injustice requires a prior illegality, a sufficient causal connection, and prejudice arising from the decision under challenge. Maladministration or administrative delay alone does not establish such illegality. The discretion under paragraph 353B of the Immigration Rules is narrow and concerns exceptional circumstances; an error about reporting history is immaterial where even full compliance would not reasonably justify leave. “Further submissions” under paragraph 353 must relate to the earlier asylum or human rights claim and must be assessed in their context.

The claimant, an Algerian national whose asylum appeal rights had been exhausted, challenged the refusal of leave following consideration of his case within the legacy programme. Proceedings were stayed to permit reconsideration, after which the Secretary of State again refused leave.

The claimant argued that an earlier communication had unlawfully represented that a legacy decision had been made, that the later decision contained a material factual error concerning his reporting history, and that further evidence should have been assessed as a fresh claim under paragraph 353 of the Immigration Rules. The court also determined an application to amend the grounds.

1. Amendment. The amendments concerning the legacy issue and the alleged fresh claim were permitted. The availability of an alternative remedy did not oust the court’s jurisdiction.
2. No earlier immigration decision. On the evidence, the Secretary of State had not decided in 2011 whether to grant leave outside the Rules. The November 2011 letter concerned support under section 4 of the Immigration and Asylum Act 1999 and the existence of outstanding applications or representations. The legacy programme was operational and created no new substantive rights. The wording of the correspondence could reasonably have been misunderstood, but any resulting maladministration did not amount to illegality.
3. Historic injustice. The claimant therefore could not establish a prior illegality, failure to perform a legal duty, or a sufficient causal connection capable of engaging the corrective jurisdiction described in R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744 and Geraldo and others [2013] EWHC 2703. The absence of an earlier decision also meant that there had been no failure to apply paragraph 395C or to give reasons.
4. Material error of fact. The Secretary of State inaccurately stated that the claimant had failed to report throughout the period after his appeal rights became exhausted. Applying the approach in E & R [2004] EWCA Civ 49, however, the error did not materially affect the outcome. Paragraph 353B required attention to exceptional circumstances, and compliance alone would not have entitled the claimant to remain. The ground therefore failed.
5. Fresh claim. Paragraph 353 concerns further submissions relating to an earlier asylum or human rights claim. The 2010 letter contained only general assertions and, in context, was not a sufficiently detailed submission. The 2012 witness statement was made to support reconsideration of leave outside the Rules under the legacy programme, not to advance a further Article 8 claim. It therefore did not engage paragraph 353.
6. The judicial review claim was dismissed. There was no order for costs. Permission to appeal was refused.

This was a first-instance judicial review. Permission was initially refused on the papers, proceedings were then stayed by consent for reconsideration, and permission was later granted following an oral renewal hearing. The Administrative Court dismissed the claim and refused permission to appeal.