Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 114
P1212/12	OPINION OF LORD DOHERTY in the Petition DM Petitioner; for Judicial Review ________________

Petitioner: Caskie; McGill & Co, Solicitors

Respondent: Pirie; Office of the Advocate General

9 July 2013

Introduction

[1] The petitioner is an Algerian national. He was born in 1970. He came to the United Kingdom in 1998. He claimed asylum. He was invited on two occasions to attend a screening interview for the purposes of his asylum claim. On both occasions he failed to attend. On 14 May 1999 his asylum claim was refused. On 1 August 2000 a decision was taken to remove him. On 4 August 2000 he gave notice of appeal. He did not attend the appeal hearing on 31 October 2000 and the Special Adjudicator dismissed his appeal. On 15 December 2000 he was refused permission to appeal to the Immigration Appeal Tribunal: he became appeal rights exhausted.

[2] The petitioner married a British citizen in August 1998. On 21 March 2000 he sought leave to remain. On 12 December 2001 he was granted leave to remain for one year on account of his marriage. The marriage got into difficulties in 2002. The petitioner and his wife were divorced in 2006. There were no children of the marriage.

[3] The petitioner made no further application for leave to remain when his leave expired on 12 December 2002. He became an overstayer. He did not contact the authorities until 29 May 2009 when solicitors wrote applying for discretionary leave on the basis that removing him would breach his article 8 ECHR right to private life. The application also sought "to have his case considered/reconsidered in light of the policy as announced by the Secretary of State in July 2006 in respect of case resolution".

[4] During 2006 it became apparent that there was a massive and unmanageable backlog of asylum/ human rights applications by which the respondent was overwhelmed. The background to the "legacy" has been set out in the judgments of Burton J in R (Hakemi & Ors) v Secretary of State for the Home Department [2012] EWHC 1967 (Admin) and Stephen Morris QC sitting as a deputy judge in R (Mohammed) v Secretary of State for the Home Department [2012] EWHC 3091 (Admin).

[5] On 19 July 2006 the Secretary of State stated in the House of Commons (Hansard, HC Vol 449, col. 324):

"We will tackle the case load in the IND [Immigration and Nationality Directorate] with the aim of clearing it - not in 25 years, as has been suggested, but in five or less. We will put our books in order."

A little later he continued (col. 328):

"I did say that we would aim to clear up the caseload legacy in five years - or, I hope, less time than that."

[6] On 25 July 2006 the Home Office published "Fair, effective, transparent and trusted-Rebuilding confidence in our immigration system" which set out proposals for reform. Paragraph 2.10 stated:

"We will also deal with the legacy of older cases that have yet to be fully resolved. We plan to do this within five years or less. We will prioritise those who may pose a risk to the public, and then focus on those who can more easily be removed, those receiving support, and those who may be granted leave. All cases will be dealt with on their individual merits."

[7] On the same day the Secretary of State made a statement to the House of Commons about those proposals. The statement included the following passage (Hansard, HC, Vol. 449, cols. 736-7):

"We will deal with the legacy of unresolved cases in five years or less, as I said last week. We will prioritise those who may pose a risk to the public and then focus on those who can more easily be removed, those receiving support and those who may be granted leave. All cases will be dealt with on their merits: there will be no amnesty."

In response to a question on the five year period and what "resolve" meant the Secretary of State replied (col. 750):

"..it does mean that each and every one of these cases will be attended to within a five year period, rather than just sitting there, unattended, as has been the case up to now."

[8] The decision was taken to transfer some 500,000 outstanding applications received prior to 5 March 2007 to a specially constituted team of some 950 caseworkers, the Casework Resolution Directorate ("CRD") to work through the cases.

[9] The Secretary of State did not reach a decision on the petitioner's representations of 29 May 2009 until 14 November 2011. On that date she considered whether leave to remain should be granted having regard to immigration rule 395C. She concluded that it should not. She also rejected the petitioner's human rights claim: while removal would interfere with his right to private life the interference was considered to be justified and proportionate.

[10] The petitioner appealed that decision, but only on the ground that removal would breach his article 8 right to private life. On 5 January 2012 the First-tier Tribunal (Immigration and Asylum Chamber) allowed the appeal, holding that removal would be a disproportionate interference with the petitioner's right to private life.

[11] On 31 August 2012 the Secretary of State granted the petitioner discretionary leave to remain in the United Kingdom until 30 August 2015. He will be able to reapply for a further period of discretionary leave to take effect on the expiry of that period. He could become eligible for settlement on 30 August 2018 (after six years discretionary leave).

The petition

[12] The petition was presented on 15 November 2012. Thereafter it underwent substantial amendment and adjustment. The petitioner now avers:

"2. That on 31^st August 2012 the Secretary of State decided to grant the petitioner "Discretionary Leave to Remain" in the United Kingdom and not Indefinite Leave to Remain.

3. The petitioner seeks:

(i) declarator that the petitioner is entitled to Indefinite Leave to Remain in the United Kingdom...

4. The petitioner challenges the said decisions on the following grounds...

6. On 29^th May 2009 representations were made on the petitioner's behalf that he be allowed to remain in the United Kingdom. Those representations should have been answered by 19^th July 2011, but were not responded to until 14^th November 2011...

7. In failing to fully consider the petitioner's application by 19^th July 2011 (at which time he would have been entitled to indefinite leave to remain ("ILR") the Secretary of State breached the petitioner's legitimate expectation that his claim would be considered under the Secretary of State's policy seeking to address the backlog of asylum cases, where failed asylum seekers were not removed or granted Leave to Remain...

11. As part of a programme to reform the Home Office the Home Secretary announced that the backlog of cases would be dealt with within five years. He made statements in the House of Commons and elsewhere in respect of that timeframe..."

The averments then made reference to the statements already described and continued:

"14. The Secretary of State decided to transfer what was then an unknown number of unresolved cases...to...the Casework Resolution Directorate ("CRD")...

15. ...When it reviewed a case the CRD would begin by considering the Immigration Rule 395C factors set out in Chapter 53 of the "Enforcement Instructions and Guidance". In practice Immigration Rule 395C provided that before a decision to remove was made in any "Legacy Case" regard will be had to all the relevant factors known to the Secretary of State. The Secretary of State published and frequently revised Chapter 53 of the Enforcement Instructions and Guidance ("EIG"). Its purpose was stated to be to provide case workers with clarification on the "relevant factors" in Immigration Rule 395C...

16. Immigration Rule 395C ... did not prescribe the length of time for which leave to remain in the United Kingdom should be granted if the Secretary of State decided not to remove. For a period prior to 21 July 2011 Chapter 53 of the EIG and the associated policies on Discretionary Leave to Remain indicated that Indefinite Leave to Remain should be granted to a person it had been decided not to remove...Subsequent versions of Chapter 53 did not specify the length of time for which leave to remain in the United Kingdom should be granted if the Secretary of State decided not to remove, but staff were or should have been aware of the previous indication that such a decision should normally lead to a grant of Indefinite Leave to Remain. When it decided not to remove following a consideration of the factors in Chapter 53 the CRD would in the vast majority of cases throughout its existence grant the person concerned ... Indefinite Leave to Remain ...

17. When the Secretary of State decided a person did not qualify for Leave to Remain under Immigration Rule 395C the CRD would go on to consider whether there were other grounds to grant the person leave to remain ...this would include, for example, consideration of any asylum based further submissions that the applicant may have lodged. Applicants granted refugee status would be granted leave to remain for 5 years in accordance with the UKBA policy on Refugee Leave. The Secretary of State published guidance, which the CRD should have followed, that where his removal would be incompatible with his rights under article 8 ECHR, an applicant should be given discretionary leave to remain in the United Kingdom for three years. The CRD did not have a policy or practice that the leave to remain in the United Kingdom that it granted would only be indefinite, but in practice almost all who were granted Leave to Remain under Immigration Rule 395C were granted Indefinite Leave to Remain (emphasis added)...

19. On 13^th September 2011 the Acting Chief Executive of the UKBA (Mr Sedgewick) gave evidence to the Home Affairs Select Committee. A dispute arose as to whether some 18,000 cases which it was said were awaiting removal action had been completed. Mr Sedgewick's evidence in this regard is recorded as his responses to questions 13-26...within that passage Mr Sedgewick said "Our commitment was to decide the cases. We have decided all the cases ...every single case has had a decision...(and the persons concerned) has been informed...our commitment was always to decide the cases. We never made a promise that we could remove every single one of those by this summer...

21. The views of those with expertise and experience in the field of immigration law and practice are a useful measure of whether what has been said by the Minister and his officials is a promise upon which reliance may be placed...

22. The Independent Chief Inspector of Borders and Immigration produced a report entitled "An inspection of the UK Border Agency's handling of legacy asylum and migration cases" in November 2012 (the Inspector's report). It is clear from the introduction by John Vine CBE QPM that he considered what had been said by the Minister as a promise ...

23. On 21^st July 2011 the Secretary of State amended chapter 53 ...Following that amendment paragraph 53.2.1 of the EIG provides (and when the Secretary of State made the decision on the petitioner's case provided) "Where ... removal is not considered appropriate a maximum of 3 years Discretionary Leave (DL) should be granted."...

27. The Secretary of State has not honoured the clear promise to consider cases such as the petitioner's before 19 July 2011 in accordance with the announcement made in Parliament and elsewhere. In order to remedy that injustice the Secretary of State should have applied the policy and/or practice in place as at 19 July 2011 when she reached her decisions after that date...

34. Although the petitioner was not issued with an express personal promise that his claim would be determined before the termination of the Legacy policy, there was a regular practice of granting ILR up to 19 July 2011 to those who could not be removed and who had been allocated to the CRD...

38. The petitioner was therefore told in clear terms that his claim would be determined in accordance with the announcement made in parliament and elsewhere ... That involves the following:

(i) the cases would be determined by 19 July 2011

(ii) the cases would be resolved either by removal from the UK or granting leave to remain in accordance with the existing law and policy

(iii) prior to 20 July 2011 the ... practice was ... to grant ILR to those in relation to whom it was accepted should not be removed...

39. It was represented to the public that all cases that fell to be determined under the Legacy policy would be determined by 19 July 2011... The time by which the case would be considered was just as much a promise as the substantive consideration itself...

42. In all these circumstances it cannot be said that the Secretary of State has acted consistently or proportionately and the petitioner's legitimate expectation has been breached ...

46. ... Had the Secretary of State lawfully considered the petitioner's case when she should have the petitioner would have been granted Indefinite Leave to Remain. To remedy the injustice of the Secretary of State's treatment of the petitioner this Court should declare the petitioner entitled to Indefinite Leave to Remain..."

The petitioner's plea-in-law is:

"The decision of the Secretary of State to refuse to grant the petitioner Indefinite Leave to Remain being unlawful the declarator sought by the petitioner should be granted."

[13] Answers were lodged on behalf of the Secretary of State. At a first hearing on 23 January 2013 Lord Brodie ordained parties to lodge written submissions. The matter came before me for a continued first hearing on 21 March 2013. After I had taken the case to avizandum both parties submitted further written submissions.

Immigration Rule 395C

[14] Section 10 of the Immigration Act 1999 provides:

"10.- Removal of certain persons unlawfully in the United Kingdom.

(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if-

(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave..."

As at 19 July 2011 Immigration Rule 395C provided:

"395C. Before a decision to remove under section 10 is given, regard will be had to all the 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.

In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account."

Rule 395C ceased to apply as of 13 February 2012. It was replaced by rule 353B, which provided:

"Exceptional Circumstances

353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant's:

(i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;

(ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;

(iii) length of time spent in the United Kingdom spent for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused;

in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate.

This paragraph does not apply to submissions made overseas.

This paragraph does not apply where the person is liable to deportation."

Relevant policies and practice

[15] At the material times the Secretary of State's published policy guidance was as follows:

Discretionary leave to remain - Immigration Rule 395C

Chapter 53 of the EIG provided guidance on the "relevant factors" to which UKBA officials should have regard in terms of rule 395C before making a decision on removal under section 10 of the Immigration Act 1999. The version of Chapter 53 which was extant immediately before April 2008 provided:

"Should the decision maker conclude that removal is not appropriate then leave outside the Rules should be granted. Such leave should generally be Indefinite Leave to Remain unless limited leave or deferred removal is the appropriate course of action to take. However, each case must be considered on its own individual merits."

Between April 2008 and 19 July 2011 Chapter 53 did not prescribe the length of time for which leave to remain should be granted in the event of a decision not to remove on Rule 395C grounds. From 20 July 2011 until rule 395C was revoked on 13 February 2012 Chapter 53 provided that in such circumstances discretionary leave to remain for a period of up to three years should be granted.

Discretionary leave to remain - article 8

Between 2010 and 8 July 2012 a person whose removal would be incompatible with article 8 ECHR should be given discretionary leave to remain for up to three years.

Discretionary leave to remain - change in policy

From 9 July 2012 the policy changed so that, subject to certain exceptions, the maximum period of discretionary leave which would be granted at any one time was 30 months.

[16] The Secretary of State's practice up to 19 July 2011 had been to consider the Rule 395C factors and the Chapter 53 guidance first. If that led to a decision not to remove Indefinite Leave to Remain had been granted in most, but not all, cases. If that exercise had not resulted in a decision not to remove any other relevant grounds why removal should not be granted were considered, including whether removal would be incompatible with article 8 ECHR. If it was decided that removal should not take place because it would be incompatible with article 8, discretionary leave to remain for up to three years would be granted.

Brief outline of the parties' submissions

Petitioner

[17] Notwithstanding the terms of the petition, in written and oral submissions Mr Caskie did not contend that there had been a promise to decide cases such as the petitioner's within five years of 19 July 2006. Instead, he submitted that the Secretary of State had promised to decide such cases within five years of 25 July 2006 in accordance with the law and policies applicable at the time the decision was taken (paragraph 46 of the petitioner's Written Submissions). In a further departure from the petition he went on to submit that the petitioner had a legitimate expectation that his case would be decided in accordance with the policy and practice which had been applied by the CRD when it was operational. The CRD had ceased to operate before 20 July 2006 and therefore it was the policy and practice applicable before that date which was relevant. A legitimate expectation could arise "either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue" (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, per Lord Fraser at p. 401B). What had been said in Parliament on 25 July 2006, and in the Home Office publication of the same date, had been a promise that the legacy cases would all be decided by that date. The representation had been "clear, unambiguous and devoid of relevant qualification" (R v Inland Revenue Commissioners, ex parte MFK Underwriters [1990] 1 WLR 1545 per Bingham LJ at p. 1570). Subsequent material, including the Sedgewick statement, affirmed the nature and effect of the representation. It had been made to a class of persons of whom the petitioner was a member. Up to 19 July 2011 the Secretary of State's practice had been to grant Indefinite Leave to Remain in such cases where the decision was not to remove. The promise gave rise to a legitimate expectation that legacy cases such as the petitioner's would be decided within five years of 25 July 2006. The practice gave rise to a legitimate expectation that it would not change and that all legacy cases would be decided in accordance with it. It was not necessary that the petitioner actually knew of the promise and the practice and relied upon them (Craig, Administrative Law (4^th ed.), p. 619; Bibi v Newham LBC [2002] 1 WLR 237, per Schiemann LJ at paragraphs 29-30; R(Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363, per Laws LJ at paragraphs 68-69; Paponette v Attorney-General of Trinidad and Tobago [2012] 1 AC 1, per Lord Dyson delivering the judgment of the majority of the Board at paragraph 38). A legitimate expectation had in fact arisen in the petitioner's case. The nature and character of the representation and the practice were not such as to prevent them giving rise to a legitimate expectation (Paponette v Attorney-General of Trinidad and Tobago, per Lord Dyson at paragraphs 41-42). The Secretary of State had not demonstrated that her failure to act in accordance with that legitimate expectation had been proportionate to a legitimate aim. She had not honoured the promise and had not followed the practice. Accordingly, she had acted unlawfully. Had she honoured the promise and followed the practice the decision would have been made before 25 July 2011, with the result that Indefinite Leave to Remain would have been granted. In order to do justice to the petitioner on 31 August 2012 the Secretary of State ought to have granted him Indefinite Leave to Remain (R(Mohammed) v Secretary of State for the Home Department [2012] EWHC 3091 (Admin), at paragraph 122. The absence of challenge before the FTT to the rule 395C aspect of the decision of 14 November 2011 was explicable and ought not to be treated as a failure to exhaust an available alternative remedy. At that time - prior to publication of the Independent Chief Inspector's report on 22 November 2012 - the petitioner would not have been able to satisfy the FTT that he had had a legitimate expectation which had been breached. Accordingly the court should reduce the decision of 31 August 2012 and pronounce declarator that the petitioner is entitled to Indefinite Leave to Remain (Rashid v Secretary of State for the Home Department [2005] EWCA Civ 744). In the event of the court not being persuaded that declarator should be pronounced the decision should be reduced so that the Secretary of State could remake it lawfully.

Respondent

[18] Mr Pirie submitted that the respondent's decision of 31 August 2012 was lawful and that the petitioner's attack on it was ill-founded. The statements founded upon by the petitioner had to be read in context (R(Zeqiri) v Secretary of State for the Home Department [2002] INLR 291 at paragraph 44; R(Davies) v Revenue and Customs Commissioners [2011] 1 WLR 2625 at paragraph 29). None of them had been a promise that all of the legacy cases would be decided within five years of either 19 July or 25 July 2006. Rather, they had been aspirational. There had been no undertaking or warranty that the aim expressed would be achieved in every case. The statements had not given rise to a legitimate expectation that the petitioner's case would be decided before 19 July 2011 or 25 July 2011. It was for the court to decide whether the relevant statements had the necessary character at the time they were made. The matter was to be looked at objectively (R v Barking and Dagenham London Borough Council, ex p Lloyd [2001] LGR 86, at paragraph 30; R(Bancoult) v Secretary of State for Foreign and Commonwealth Affairs, at paragraph 62; Paponette v Attorney-General of Trinidad and Tobago, at paragraph 30). The issue did not fall to be determined on the basis of statements, comments or views expressed at later dates by ministers, civil servants or others. In any case, even if such material was relevant the conclusion would be the same: the statements in July 2006 had been aspirational. Accordingly, the petitioner's case fell at the first hurdle.

[19] If, contrary to the respondent's submission, there had been a promise to decide all legacy cases before 25 July 2011, a decision taken on 24 July 2011 in accordance with the policies and practice then applicable would have complied with the promise.

[20] Between 2008 and 19 July 2011 the applicable policy did not provide that Indefinite Leave to Remain should be granted where the decision was not to remove having regard to rule 395C. In practice, Indefinite Leave to Remain had been regularly - but not always - granted in such circumstances. However, from 20 July 2011 the applicable policy in such circumstances was to grant discretionary leave to remain for a period of up to three years. Prior to that date if rule 395C considerations did not lead to a decision not to remove the practice was to go on to consider other grounds, including article 8 ECHR. In the event of a decision not to remove on article 8 grounds the policy was to grant discretionary leave for a period of up to three years.

[21] On 14 November 2011 the respondent did not consider that rule 395C factors prevented removal. She went on to consider the petitioner's article 8 case and rejected it. There was no reason to think the respondent would have approached the rule 395C aspect of her decision differently had she decided it prior to 25 July 2011. That aspect of the decision could have been challenged in the appeal to the FTT. The petitioner had appealed the decision only on article 8 grounds. It had been open to him then to argue that he had the legitimate expectation now founded upon. He had not done so. He had failed to exhaust an available alternative remedy. The availability of redress had not depended upon publication of the Independent Chief Inspector's report. The petition had been presented before the report's publication.

[22] The appeal founded on article 8 had been successful. The respondent's decision of 31 August 2012 reflected that, and in the exercise of her discretion she applied the policy re leave granted on article 8 grounds which had been in force at the time the FTT allowed the appeal (on 6 January 2012) rather than the policy in force on 31 August 2012 (discretionary leave for up to three years as opposed to discretionary leave for up to 30 months). (The policy to grant discretionary leave of up to three years had been the relevant policy between 20 July 2011 and 8 July 2012 - see paragraph 15 above).

[23] In any event, even if there had been a statement or statements capable of being construed as a promise, and there had been the practice suggested by the petitioner, that did not give rise to the legitimate expectation claimed. The subject matter, nature and context of any promise in the statements relied on put it in the realm of politics, not of the courts, and the question whether the Secretary of State should be held to any such promise was a political rather than a legal matter (R v Secretary of State for Education and Employment, ex p Begbie [2000] 1 WLR 1115, per Laws LJ at pp. 1130G-1131D; R(Bancoult) v Secretary of State for Foreign and Commonwealth Affairs, at paragraph 60; Paponette v Attorney-General of Trinidad and Tobago, at paragraph 28; R(Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin), at paragraphs 41-44). Even if the statements and the practice had been capable of giving rise to a legitimate expectation they had not in fact done so in the petitioner's case. The statements had not been made to him and he had been unaware of them and of the practice. If they had given rise to the legitimate expectation claimed the denial of that expectation had been lawful. It had been proportionate to a legitimate aim - the improvement of the system of immigration control.

[24] The contention that the petitioner had a legitimate expectation that his case would be determined by the CRD rather than by any other department or official in UKBA was not the case set out in the petition. Besides, neither the statements founded upon nor such practice as had existed gave rise to a legitimate expectation that the petitioner's case would be decided by the CRD. In any case the same law, policy and practice had been applied by the CRD and by the other departments and officials of UKBA at the material times (see Mr Matthews' affidavit paragraphs 15 -16). This point too was one which could competently have been taken in the appeal to the FTT but had not been taken.

Discussion

The case pled

[25] The starting point is that Mr Caskie departed from the case pled in the petition. He did not maintain that any of the statements which he founded upon contained a promise that legacy cases such as the petitioner's would be decided within five years of 19 July 2006.

[26] The averments that the statements contained such a promise were the cornerstone upon which the petitioner's legitimate expectation case had been built. In normal course failure to establish such an essential part of a petitioner's case would lead to refusal of a petition.

[27] Mr Caskie did not move to amend the petition, but he did seek to persuade the court that there were other grounds for attacking the respondent's decision of 31 August 2012.

The arguments advanced

Legitimate expectation of decision within five years of 25 July 2006

[28] Mr Caskie submitted that the statements founded upon were a promise that legacy cases such as the petitioner's would be decided within five years of 25 July 2006; that there had been a practice that persons granted leave to remain on rule 395C considerations were granted Indefinite Leave to Remain; that the promise had given rise to a legitimate expectation that the petitioner's case would be decided within that period; that the practice had given rise to a legitimate expectation that it would not be changed and that legacy cases would be dealt with in accordance with it; and that had the decision been in conformity with the petitioner's legitimate expectation he would have been granted Indefinite Leave to Remain.

[29] I am not persuaded that any of the statements founded upon by the petitioner constituted a promise that all legacy cases would be dealt with within five years of 25 July 2006. I agree with Mr Pirie that the statements were aspirational. There was a clear declaration of an objective, and the expression of determination to achieve it; but it was not, and was not intended to be, a binding undertaking to those with legacy claims. I reach that conclusion on an objective reading of the statements, having regard to their context. I do not find the later material which Mr Caskie founded upon to be useful in determining the effect of the statements. In any case I agree with Mr Pirie that, read fairly and as a whole, that material is also indicative of the statements having been aspirational.

[30] In relation to practice, it is common ground that in most, but not all, rule 395C non-removal cases the CRD granted Indefinite Leave to Remain. The affidavit from Mr Matthews confirms that. It also confirms that where the rule 395C criteria did not lead to a decision not to remove the CRD went on to consider other potential bases for non-removal, including article 8 ECHR; that in the event of a decision not to remove because of an article 8 claim leave to remain would be granted for up to three years; and that at the material times (as one would expect) the CRD and other departments and officials of UKBA applied the same law, policy and practice. As already noted, from 20 July 2011 the clear policy in rule 395C non-removal cases was to grant discretionary leave to remain for up to three years.

[31] On the material before me the petitioner has failed to establish that prior to 20 July 2011 there was a practice of granting Indefinite Leave to Remain in rule 395C cases which was so unambiguous, so widespread, so well-established and so well-recognised as to carry a commitment to legacy claimants that its continuance was assured, and that their cases would be determined in accordance with it (R(Davies) v Revenue and Customs Commissioners, per Lord Wilson at paragraph 49).

[32] It is well established that administrative decisions fall to be taken in accordance with the law, policy and practice at the time the decision is taken (In re Findlay [1985] AC 318, per Lord Scarman at page 338; Odela v Secretary of State for the Home Department [2010] Imm AR 59, per Lord Hoffman at paragraphs 6, 7, and Lord Brown at paragraphs 33 - 39; R(Belkevich) v Secretary of State for the Home Department [2013] EWHC 1389 (Admin), per John Howells QC at paragraph 43). I regard the circumstances of the present case as being clearly distinguishable from those in Rashid v Secretary of State for the Home Department and R(Mohammed) v SSHD. Moreover, I do not find persuasive the dicta in those cases upon which Mr Caskie places reliance. I take some comfort from the fact that in this regard I am in distinguished company (see e.g. R(S) v Secretary of State for the Home Department [2007] EWCA Civ 546, per Carnwath LJ at paragraph 46; Patel and Ors v Secretary of State for the Home Department [2012] EWHC 2100 (Admin), at paragraph 85 et seq.; EU (Afghanistan) and Ors v Secretary of State for the Home Department [2013] EWCA Civ 32, per Sir Stanley Burnton at paragraphs 6 and 34; R(Belkevich) v Secretary of State for the Home Department, at paragraphs 36-44).

[33] If the respondent had decided the petitioner's claim on 24 July 2011 it would have been in accordance with the law, policy and practice in force at that time. Had she adopted the same approach to the rule 395C aspects as she did on 14 November 2011, but upheld the article 8 claim, the result would have been a grant of discretionary leave to remain for three years.

[34] Mr Caskie argued that, although he had not sought reduction of it in the petition, the rule 395C aspect of the decision of 14 November 2011 had been unlawful: and that prior to 25 July 2011 the respondent ought to have granted leave to remain on rule 395C grounds.

[35] It was common ground that the petitioner could have raised in the appeal before the FTT the matters he now raises, and that he did not do so. Mr Caskie submitted that at that time the petitioner would not have had the Independent Chief Inspector's report of November 2012; that the petitioner's prospects of success would therefore have been much poorer than they were after the report was published; and that accordingly it would not be right to treat him as having failed to exhaust an available alternative remedy. I find those submissions to be unconvincing. I see no good reason why the petitioner's legitimate expectation claim could not have been properly advanced before the FTT. I do not accept that its merits depended upon the contents of the Inspector's report. I regard it as not without significance that the petition was presented before the report's publication (the averments referring to it were not introduced by amendment until March 2013). I agree with Mr Pirie that the petitioner failed to exhaust an available alternative remedy.

[36] Besides, even if on 24 July 2011 the respondent had decided on rule 395C grounds not to remove the petitioner, he would not have been granted Indefinite Leave to Remain. A decision taken according to the law, policy and practice applicable on that date would have resulted in a grant of discretionary leave to remain for up to three years (see paragraph 15 above).

Legitimate expectation that case be decided by CRD or in accordance with the law, policy and practice applied by the CRD

[37] Mr Caskie sought to overcome the difficulty presented by the policy change on 20 July 2011 by suggesting that the petitioner had a legitimate expectation that his case would be decided in accordance with the law, policy and practice which had been applied by the CRD when it was operational.

[38] There is no proper foundation for any such case in the petition. In any event, in my opinion the argument is ill-conceived.

[39] None of the ministerial or other statements founded upon contained a promise that all legacy cases would be decided by the CRD, or that they would be decided in accordance with the law, policy and practice applied by the CRD when it was operational.

[40] Nor has it been shown that there was a practice of the CRD granting Indefinite Leave to Remain which carried a commitment to legacy claimants that its continuance was assured and that their cases would be determined by CRD in accordance with it; failing which that their cases would be decided by the respondent in accordance with the law, policies and practice which CRD had applied.

[41] Further, the material before me does not support the petitioner's claim that the law, policy and practice applied by the CRD differed from the law, policy and practice applied by the remainder of the UKBA. The affidavit from Mr Matthews is positively to the contrary (paragraphs 15-16).

Conclusions

[42] It follows that the petitioner has failed to satisfy me that the respondent's decision of 31 August 2012 was unlawful. In my opinion the decision was lawful.

[43] Parliament has vested in the respondent the power to grant leave to remain within the United Kingdom. It is well established that the court has no power to order her to grant leave to remain (see, e.g., EU (Afghanistan) and Ors v Secretary of State for the Home Department, per Sir Stanley Burnton at paragraph 6; R(Belkevich) v Secretary of State for the Home Department, paragraph 35). Had I agreed with the petitioner that the decision was unlawful I would not have granted the declarator sought. I would have reduced the decision. The respondent would then have required to make a new decision.

[44] I have not found it necessary to express a view on every matter canvassed before me. In light of my conclusions on the issues discussed above, some of the other issues are only of hypothetical interest (eg whether, if there was a promise, it was of a type which gave rise to a legitimate expectation in the circumstances; and whether, if the legitimate expectation claimed did arise, the respondent was justified in denying it), and I prefer to reserve my opinion on them.

Disposal

[45] I shall repel the petitioner's plea-in-law, sustain the respondent's plea-in-law, and refuse the petition. I shall reserve all questions of expenses meantime.