Case No. UKUT-00175-(IAC)

[2012] EWHC 1967 (Admin). In other words the programme did not purport to create any new substantive rights or new basis for the grant of leave.’ 12. A report prepared by the Independent Chief Inspector of Borders and Immigration, John Vine, in 2012 1 was ‘highly critical’ of the programme. Some of the findings were summarised in Geraldo as follows: ‘64. I should record that the Vine report referred to, does contain material understandably relied upon by the claimants as evidence of maladministration and administrative delay on the part of the defendant in dealing with cases which fell within the legacy programme and as explaining why in their particular cases the defendant never got round to opening their files before she did. Thus for example Mr Vine referred as at September 2011 (report para 5.124) to a backlog of 100,000 pieces of correspondence with some 28,000 pieces of post remaining unopened, and to the likelihood that many cases placed into the Controlled Archive at the end of the CRD had been done so incorrectly 'on the basis that the applicants and/or legal representatives had not replied to Agency correspondence when in fact they had'. I should add however that Miss Anderson does not accept that this material has any relevance to these individual cases, the boxes of unopened correspondence being peculiar to the short period of time in 2011, not relevant to these cases, when the work of the CRD was being transferred to the CAAU. 65. Further the report criticises the inadequacy of 'tracing steps' undertaken by the UKBA to trace 'absconders' (para 5.29), the failure of the Agency to follow up employer contact details held on applicants in order to trace 'applicants' (paras 5.54/5.55) and the further failure by the Agency to undertake ' any proactive work within CRD to locate and trace any of the individuals in our sample prior to placing these cases into the asylum controlled archive' (5.21). This was said to be a serious failing. The Agency was also said not to be 'meeting the commitments it had made to carry out extensive checks in these cases' with the point being made that the Agency should have been much more proactive in undertaking data matching exercises to identify whether any of the individuals were known to other government departments (for example the Department of Work and Pensions (DWP) or the HMRC) or financial institutions (e.g. credit reference agencies). Mr Forshaw was cross-examined on these particular 'tracing' failures in the context of Mr Aroun who had been working up until 2008, with the suggestion he had been capable of being traced between 1998 – 2008 through the DWP. Mr Forshaw's evidence was however that the tracing requirements referred to, were linked to the controlled archive and were steps undertaken to confirm that a person could be put in the archive as an untraced person whereas none of the claimant's cases were placed in the controlled archive. Moreover Miss Anderson made the further point that none of this material could have any relevance to Mr Aroun who, on the evidence referred to by Mr Bray, was never in the CRD cohort of cases until he got in touch again after some 10 years, his entry into the UK predating the CRD database (and possibly also because he had been treated as a marriage case and not an asylum case at his own request).’ 13. Ms Naik referred to other aspects of the Vine report. She submitted that the nature of the programme meant that the respondent could not use the mere fact that the applicant was an absconder or that there was a long period of non-compliance due to Home Office delay to say that he should not have been granted ILR. The purpose of the programme was to resolve a large number of cases of failed asylum seekers. The respondent was prepared to ‘overlook adverse behaviour’ when considering cases under the programme. The evidence pointed to ‘flexible consideration’ of the character and conduct assessment under paragraph 395C of the immigration rules. She said that the Vine report showed that there was no coherent policy on how to approach the assessment, but the report indicated that a delay of about 6-8 years was likely to be sufficient to consider granting leave. At 5.88 the report set out some of the criteria used in the decision-making process. They are consistent with the guidance outlined in Chapter 53, which was the guidance caseworkers followed when considering a case under paragraph 395C. Figure 13 of the Vine report listed some of the assessment indicators as follows: 1. Criminal convictions over threshold? 2. Any activities meriting exclusion from the UK? 3. Agency delay has contributed to a period of residence over 4 years? 4. If evidence of previous non-compliance, is this outweighed by length of residence and recent compliance? 5. Any evidence of connections to the UK? 6. Limited prospect of enforcing removal? 14. Although the Vine report indicates that in a large numbers of cases considered under the Legacy Programme people were granted leave, and that on some occasions serious non-compliance was either missed or not given sufficient weight, it is clear from some of the figures outlined in the report that the programme was not an amnesty. The number of refusals was not insignificant. We were not referred to any evidence giving the overall statistics for grants and refusals, but Figure 12 of the Vine report took a sample of cases from April 2011 to February 2012. At the beginning of that period refusals amounted to 21% of the total although the figure dropped to 9% by the end of that period. In Geraldo , the court noted the following figures: ‘By the time the CRD was wound up in 2011, HASC in its report of April-July 2011 (published November 2011) noted a final position of ‘500,500’ records of which 479,000 cases were said to be ‘concluded’ of which 172,000 had been granted ‘leave to remain’, 37,500 had been removed, and 268,000 were ‘others’ which included duplicate records, errors or cases in the ‘controlled archive’ which then then stood at 98,000 to which 500 would be added if not traced within 6 months. 3,000 stood to be granted subject to security checks.’ 15. The Legacy Programme did not operate as an application for leave to remain. Those who were eligible for consideration under the programme were supposed to be invited to complete a questionnaire for Home Office caseworkers to consider. In this case the GCID notes recorded that the file was sent ‘to Layby’ on 01 October 2005. They record no further action until 16 June 2009 when the note stated: ‘Received letter from subject dated (20/03/09) Progress update requested and complained we have not acknowledged his previous correspondence dated (29/12/08) which enclosed a completed legacy questionnaire.’ 16. The hearing bundle contains a copy of an undated letter from the applicant. It is reasonable to infer from the content that it was likely to be the letter dated 29 December 2008 referred to in the GCID notes. The applicant outlined the false nationality and date of birth given in his original asylum claim. The opening paragraph of the letter suggests that the applicant instigated the approach to the Home Office although it is likely that he would have been eligible for consideration under the Legacy Programme in any event. ‘As you are aware, the Secretary of State for the Home Department announced Legacy in July 2006. I wish to apply for my leave to remain in the United Kingdom in line with the Legacy announced by the Secretary of State for the Home Department.’ 17. The applicant enclosed a completed questionnaire and other supporting documents. The fact that the letter repeated the false identity in itself might not be that controversial had he then gone on to admit the deception, because those were the details under which he was known to the respondent. However, the applicant went on actively to maintain the deception by making a false representation that he still feared to return to Kosovo. The letter said: ‘I also submit that the situation in Kosovo is still very unsettled and uncertain. In such a grave situation, my return from the United Kingdom to Kosovo will result in breach of my rights as guaranteed by the European Convention on Human Rights.’ 18. There is no copy of the questionnaire to assess what other statements the applicant might have made, but it is clear from the cover letter that he continued the deception in, what he considered to be, an application for leave to remain under the Legacy Programme. 19. The Legacy Programme did not purport to set out any new substantive rights or a new basis for leave to remain. It was an operational exercise carried out within the existing framework of the immigration rules albeit with the broad objective of reducing the backlog of unresolved cases. The applicant was granted ILR on 12 August 2010. At that date, decisions were made within the framework of paragraph 395C of the immigration rules, which stated: 395C. Before a decision to remove under section 10 (the Immigration Act 1971) is given, regard will be had to all relevant factors known to the Secretary of State including: (i) age; (ii) length of residence in the United Kingdom; (iii) strength of connections with the United Kingdom; (iv) personal history, including character, conduct and employment record; (v) domestic circumstances; (vi) previous criminal record and the nature of any offence of which the person has been convicted; (vii) compassionate circumstances; (viii) any representations received on the person's behalf. 20. The policy guidance in place at the relevant time was ‘Chapter 53 – Extenuating Circumstances’, which was last updated on 26 July 2010 (archived on 09 August 2010). The policy provided guidance to caseworkers on how to assess a case under paragraph 395C. At 53.1.1 the guidance began with general instructions on how to apply paragraph 395C. ‘Before a decision to remove is taken on a case, the case-owner/operational staff must consider all known relevant factors (both positive and negative). ….. Removal should not be considered in any case which qualifies for leave under the Immigration Rules, existing policies or where it would be inappropriate to do so under this policy. Relevant factors are set out in paragraph 395C of the immigration rules and in the guidance below,