Shou Lin Xu, R (on the application of) v The Secretary of State for the Home Department

A legacy-programme case was not subject to an amnesty. It had to be decided under the applicable Immigration Rule and the chapter 53 guidance in force when the case was reviewed. A negative assessment did not oblige the Secretary of State to grant leave, remove the person, or make a removal decision.

The programme's stated aim of concluding cases by grant of leave or removal was an administrative aspiration. It was not an irrevocable and unambiguous promise to any individual. It therefore created no legitimate expectation that a person who was neither granted leave nor removed would receive leave to remain.

The applicant sought renewed permission for judicial review. He alleged excessive delay and contended that his case under the Secretary of State's legacy programme could only be concluded by a grant of leave or actual removal.

He had received four letters stating that he had no outstanding decision or submission requiring consideration. He also relied on an alleged policy of granting indefinite leave after six years' residence and on allegedly inconsistent grants to others.

The applicant did not attend the resumed hearing and was unrepresented. Upper Tribunal Judge Gill proceeded in his absence after considering the underlying merits. The central issue was whether the legacy programme required a grant of leave where the individual had not been removed.

1. Permission for judicial review was refused. The applicant's absence did not prevent determination. The Tribunal had considered the merits and could fairly proceed after the applicant failed to return to the hearing or co-operate in identifying the appropriate interpreter.

2. The premise of the first ground was untenable. The legacy programme did not confer an amnesty. Each case fell to be decided under the relevant provision of the Immigration Rules, namely paragraph 395C or 353B as applicable, and the chapter 53 guidance in force when the review occurred.

3. Where that assessment produced a negative result, the rationale in Patel v Secretary of State for the Home Department [2013] UKSC 72 applied. The Secretary of State could proceed on the basis that a person unlawfully present would leave voluntarily. She was not obliged either to remove that person or to issue a removal decision. The four letters stating that the applicant had no basis of stay did not entitle him to leave merely because removal had not occurred.

4. The stated aim of concluding legacy cases by July 2011, or by a grant of leave or removal, was an aim or aspiration. It was not an individual, irrevocable and unambiguous commitment capable of founding a legitimate expectation. It did not promise leave to a person who failed to satisfy the applicable rule and guidance and had not been removed.

5. The alleged six-year policy and the asserted inconsistency with grants made to others were likewise unarguable. There was no such policy or amnesty, and the consistency argument had already been rejected as hopeless. Permission to appeal to the Court of Appeal was also refused under rule 44(4B), as there was no arguable error of law.

not stated in the judgment.