What is “Legacy”? Should my case be considered under the “Legacy” provisions? Which Department of the UKBA considers Legacy cases and what type of leave should I get under the “Legacy” provisions?
There has been much confusion surrounding “Legacy” and in light of the recent High Court case of Hakemi & Ors v Secretary of State for the Home Department [2012] EWHC 1967 (Admin) (19 July 2012), the following is a straightforward summary:
Simply put, if you made an application for asylum prior to 5 March 2007 and it was still unresolved your case was allocated to “legacy”. This involved the transfer of a backlog of 500,000 outstanding applications to a team of caseworkers called the Casework Resolution Directorate (“CRD”). The idea was that these cases would be resolved by July 2011, and that the applicant was then either granted Indefinite Leave to Remain (“ILR”) or faced removal.
By July 2011, by which time the backlog of cases was intended to have been cleared, there were still some 116,000 applications unresolved. These were then transferred to the Case Assurance and Audit Unit (“CAAU”) to be decided.
In the case of FH & Others v Secretary of State for the Home Department [2007] EWHC 1571 (Admin) (5 July 2007), the delay by the Home Office in considering these applications was challenged as unreasonable and unlawful. Collins J found that cases based on delay, such as these, were unlikely to succeed except in very exceptional circumstances. He held that it was only if the delay in question was “so excessive as to be regarded as manifestly unreasonable and to fall outside any proper application of the policy or if the claimant is suffering some particular detriment which the Home Office has failed to alleviate that a claim might be entertained by the court”.
There have been several additional issues with the Legacy process relating to (i) the selection criteria as to which cases fell to be considered under Legacy; (ii) the criteria applied to the applicants to decide whether they qualified for ILR or faced removal; and (iii) what type of leave should be granted (ILR or Discretionary Leave) and the criteria which determined this.
It has been claimed that there has been no clear and detailed declaration by the Secretary of State on any of these criteria. Immigration lawyers have discerned that length of residence in the UK played a key role in the decisions made, and many have made Freedom of Information requests for statistics in order to further elucidate the decision-making process.
As with all cases (prior to the removal of paragraph 395C from the Immigration Rules on 13 February 2012), before a decision to remove was made in a Legacy case, regard was had to the relevant factors as set out in paragraph 395C and Chapter 53 of the Enforcement Instructions and Guidance (“EIG”). Namely, age, length of residence in the UK, personal history, including character, domestic circumstance, criminal record, compassionate circumstances and any representations received on the person’s behalf. Indications were given that weight should be placed on four-six years of residence in the UK.
The main complaint has been that with no clear published criteria the decision-making has been arbitrary or random.
However, in the recent case of Hakemi, it was held by the High Court that there was full publication of the practice and policy of the Secretary of State,, namely the discretionary application of a policy which gave a very wide discretion but set out the factors in paragraph 395C and Chapter 53 EIG. This was sufficient to make the policy clear and to encourage the making of representations. At present it is unclear whether this decision will be appealed to the Court of Appeal.
One of the big questions identified above still left open by this case is: on what basis were some applicants granted Discretionary Leave and others Indefinite Leave to Remain?