Jaku & Ors, R (On the Application Of) v Secretary of State for the Home Department

The Legacy Programme was an operational scheme for managing an asylum backlog. It created no substantive right, amnesty or separate entitlement to leave. Cases were to be decided under the law and policy in force when the decision was made.

A qualified target for resolving cases did not create a legitimate expectation that a decision would be made by a particular date, or that later adverse changes in the Rules or policy would be disregarded. Residence of six years or more had to be considered with all other factors. Prolonged non-compliance with immigration requirements could materially discount its significance.

Three judicial review claims concerned decisions by the Secretary of State on further representations made by asylum seekers whose original claims fell within the Legacy Programme. The claims challenged refusals to treat representations as fresh claims and alleged that separate, more favourable Legacy policies applied.

Mr Prenga’s claim was settled during the hearing and the remaining issue was costs. The substantive disputes in Mr Khaled’s and Mr Jaku’s claims concerned the effect of the Legacy Programme, the relevant version of the Immigration Rules and policy, alleged legitimate expectations arising from target dates and correspondence, and the treatment of residence and non-compliance.

1. Mr Khaled’s claim dismissed. The Legacy Programme was an operational process for resolving older cases, not a distinct legal regime. The same Immigration Rules and general policy applied to Legacy and New Asylum Model cases. Inclusion created no new rights or expectation of a grant of leave.
2. The letter of 31 July 2011, stating an aim to notify the claimant by the end of August where possible, was qualified and equivocal. It created no legitimate expectation of a decision by that date, no obligation to freeze the law or policy then in force, and no requirement for a transitional policy. The decision-maker was entitled to apply the policy and Immigration Rules current in October 2012.
3. The emails of 31 August and 1 September 2011 concerned a limited cohort of cases which had not been reviewed by the Casework Resolution Directorate and did not establish a general policy for all Legacy cases. The claimant was not shown to fall within that cohort.
4. A period of residence exceeding six years had to be considered in the round with the other relevant factors. It did not require an express statement that significant weight had been given to it. Residence accrued during prolonged non-compliance could be discounted or materially diminished. The decision lawfully explained why leave was not justified.
5. Mr Jaku’s claim dismissed. His representations added no material new basis for an Article 8 claim or for a fresh claim. The Secretary of State was entitled to apply paragraph 353B and to treat his prolonged non-compliant residence as substantially diminishing the significance of his overall residence. There was no unlawful delay or legitimate expectation requiring earlier policy to be applied. The failure expressly to mention paragraph 276ADE(vi) was not material.
6. Mr Prenga’s claim settled. The Secretary of State agreed to reconsider the decision because she had assumed that a removal notice had been received. No order for costs was made. The late defence was a breach of the court’s directions, but the settlement was not an acknowledgement that the principal Legacy arguments had merit.

Not an appeal. The judgment determined three claims for judicial review at first instance. Mr Prenga’s claim was settled during the hearing and the court made no order for costs.