Bukhari, R (on the Application of) v Secretary of State for the Home Department

A request for consideration under an administrative legacy scheme does not itself establish legacy status or create an entitlement to remain. Where correspondence also raises compassionate or private and family life grounds, the Secretary of State must engage with those matters and give an adequate response. A response dealing only with the legacy issue is insufficient if wider issues remain unresolved. The court may allow judicial review and give limited protective relief without fettering the Secretary of State’s discretion.

The claimant sought judicial review of the Secretary of State’s prolonged failure to respond substantively to correspondence requesting consideration under the legacy programme. The Secretary of State eventually stated that the claimant’s earlier asylum claim had concluded on removal and that he was outside the legacy cohort. The claimant argued that the correspondence had also raised compassionate circumstances and matters concerning his family and private life. The Secretary of State contended that there was no legacy claim and no separate application based on those wider matters. The central issue was whether the late response adequately addressed the claimant’s case.

1. Late participation. The Secretary of State’s response was served at an extraordinarily late stage, following substantial non-compliance with the procedural rules. The court therefore refused formally to permit reliance on it, but read it de bene esse and considered its submissions.
2. Legacy status. The court accepted that this was not a legacy case. The claimant’s asylum claim had concluded with his lawful removal, and the legacy programme did not provide an amnesty, create additional criteria for leave, or constitute an immigration application.
3. Wider claims. The December 2010 correspondence reasonably indicated that the Secretary of State was prepared to consider compassionate circumstances justifying leave to remain, in addition to legacy status. The claimant supplied information relevant to possible compassionate and Article 8-type considerations. The later letter addressed only legacy status and did not adequately address those wider matters.
4. Relief. The claim succeeded on the narrow, essentially factual basis that material issues concerning family and private life remained unanswered. There was no need to quash the letter because its legacy conclusion was correct. The claimant was permitted 42 days to make a fresh or updated application, subject to relevant fees and procedures. No immediate removal decision was to be made during that period. The Secretary of State’s discretion remained entirely unfettered, and the protection would lapse if no application was made.
5. The claimant was awarded his costs. The court considered that earlier proper engagement could realistically have avoided the proceedings.