Secretary of State’s duty to remedy an historical injustice in immigration decisions

In R (Balhav Singh) v Secretary of State for the Home Department (JR/5767/2019), handed down on 4 February 2021, Fordham J. dismissed a claim for judicial review of a decision to grant limited leave to remain in the UK as opposed to indefinite leave to remain (“ILR”). The Claimant contended that he was entitled to ILR not by applying the current Immigration Rules, but in order to correct an historical injustice. The claimed injustice was an allegation that, contrary to the Secretary of State’s evidence, he had not been served with papers giving him notice of a decision to remove him in October 2008. Had this lack of service been recognised, the Secretary of State would have needed to grant him ILR prior to a change in the Immigration Rules in 2012. Accepting the submissions of the Secretary of State, Fordham J. held that:

1. The Claimant had not applied for ILR prior to the 2012 rule change, and therefore the failure to grant him ILR prior to 2012 could not constitute an “historical injustice”;
2. Although the Claimant had applied for ILR in 2014 and 2015 (after the 2012 rule change), he was not at that point legally entitled to ILR under the Immigration Rules;
3. In any event, the Secretary of State reasonably maintained (and continues to maintain) that the removal papers were in fact served on the Claimant in 2008;
4. Furthermore, the issue of service was resolved in judicial review proceedings in 2015, and the Claimant was precluded by the doctrine of issue estoppel from re-opening the issue in these proceedings, applying DN (Rwanda) v SSHD [2020] UKSC 7 at paragraphs 44-64 per Lord Carnwath.

The judgment is available here. The Secretary of State was represented by Matthew Fraser at the hearing (and by Andrew Byass for the Detailed Grounds of Resistance), instructed by the Government Legal Department.