Nzangane v Secretary of State for the Home Department

The July 2011 Legacy asylum policy did not contain a general exception requiring Indefinite Leave to Remain for applicants with long residence, administrative delay or previous periods of discretionary leave. At most, the policy preserved a residual discretion to grant settlement in genuinely exceptional circumstances. The listed indicators were not rules or preconditions and, individually or cumulatively, did not establish exceptionality where delay was commonplace and the applicant had suffered no consequential prejudice. A report criticising the policy’s implementation could not itself establish an implemented policy. The court upheld the reasoning in Geraldo v Secretary of State for the Home Department and refused both judicial review and a related request for information.

The claimant, a Zimbabwean national whose asylum and subsequent applications had remained unresolved for many years, was granted three years’ discretionary leave rather than indefinite leave to remain under the Secretary of State’s July 2011 policy for Legacy cases.

He sought judicial review, arguing that paragraph 7.44 of the Vine Report evidenced a further policy exception for cases involving long residence, serious administrative delay and earlier periods of leave. He also sought information under CPR Part 18 concerning internal guidance and communications. The application had been adjourned pending Geraldo v Secretary of State for the Home Department, [2013] EWHC 2763 (Admin). The central issues were whether the alleged exception existed and, if so, whether it applied to the claimant.

1. Judicial review refused. The Vine Report, read at its highest, described a putative residual discretion to grant indefinite leave exceptionally in compelling cases. It did not establish a policy. The alleged exception had not been communicated, promulgated or implemented, and the report recorded that caseworkers were unaware of it.
2. The indicators in paragraph 7.44 were non-definitive and cumulative indications of cases which might warrant consideration. They were not rules, requirements or preconditions. A broad exception based on long residence, delay and previous discretionary leave would substantially undermine the basic July 2011 rule that Legacy applicants should receive discretionary rather than indefinite leave.
3. The court accepted that a residual discretion existed outside the Immigration Rules in genuinely exceptional circumstances. Compelling reasons alone were insufficient. Long residence and serious administrative delay were common features of Legacy cases and did not, without more, make a case exceptional.
4. The claimant’s alleged maladministration, consisting of a period during which his file was not actioned, was minor in the context of the wider Legacy backlog. He had suffered no consequential prejudice and had received leave equivalent to the period of delay. Those matters did not establish exceptional circumstances.
5. The court considered the relevant findings in Geraldo v Secretary of State for the Home Department, [2013] EWHC 2763 (Admin), correct and consistent with its own analysis. Although some findings in that judgment might technically have been obiter, they were based on the judge’s own assessment of the evidence and were not to be reopened.
6. The CPR Part 18 request failed. Further information could not improve the conclusion that paragraph 7.44 did not evidence a policy capable of assisting the claimant.

The judgment itself describes the claimant’s judicial review application, its adjournment by consent pending Geraldo v Secretary of State for the Home Department, and its subsequent continuation before the Administrative Court. No appeal from the present judgment is stated.