Mehmet Delipalta & Ors, R (on the application of) v Secretary of State for the Home Department

Delay or maladministration in resolving a Legacy case does not itself create an entitlement to a particular form of leave. A claim based on historic injustice requires prior illegality, a sufficient causal connection between that illegality and the alleged injustice, and prejudice caused by the decision under challenge. An assurance that a case will receive priority ordinarily concerns its position in the queue. It does not promise a decision by a particular date or guarantee the outcome. The Secretary of State must apply the law and policy in force when the decision is made. A likely earlier grant of indefinite leave does not establish unlawful deprivation where there was no entitlement to an earlier decision.

The claimants, Turkish nationals, sought judicial review of the Secretary of State’s decision to grant them three years’ discretionary leave rather than indefinite leave to remain. They relied on alleged failure to follow the Legacy programme’s priorities, delay following assurances to their Member of Parliament, legitimate expectation, historic injustice and fettering of discretion.

The case followed permission proceedings in which the renewed application was stayed pending Hakemi v Secretary of State for the Home Department [2012] EWHC 1967 (Admin). The central issue was whether the assurance that the case would be treated as a priority made the later grant of discretionary leave unlawful.

1. The claim was dismissed on all grounds. The court held that the assurance given to the claimants’ Member of Parliament was not made pursuant to the applicable policy or instructions. It resulted from a mistaken belief that an asylum claim remained outstanding and was therefore an error or piece of maladministration.
2. The principles concerning historic injustice required prior illegality, a sufficient causal connection between that illegality and the alleged injustice, and prejudice caused by the decision under challenge. Conspicuous unfairness alone was insufficient. Those requirements were not met.
3. The claimants had no entitlement to an earlier decision. They were failed asylum seekers who had returned without permission. Even if an asylum claim had remained outstanding, discretionary leave under Chapter 53 of the Enforcement Guidance Instructions was purely discretionary and created no entitlement to leave. The delay and the likelihood that an earlier decision might have produced indefinite leave did not establish unlawful deprivation.
4. The priority assurance promised no decision by a particular date and no particular outcome. Priority meant progress ahead of some other cases within the Legacy arrangements. The eventual decision was the first decision to which the claimants were entitled and was made under the law and policy in force at that time.
5. The alleged fettering of discretion was unsupported. The observations of the Independent Chief Inspector concerned administrative efficiency and did not determine the legal interpretation of the Secretary of State’s policy. The claimants had not received a promise of a decision before 20 July 2011.
6. The court saw no basis to interfere with the Secretary of State’s consideration of the claimants’ further applications. No order for costs was made, subject to any written submissions within 28 days.