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Public Law Solicitors

UK Border Agency’s Legacy Exercise in disarray (19 March 2010)

Date: 19/03/2010
Duncan Lewis, Public Law Solicitors, UK Border Agency’s Legacy Exercise in disarray

Delays on the part of UK Border Agency under the Legacy Exercise and to resolve priority applications lead not only to frustration and anxiety on part of the applicants but may also lead to loss of unique talent, as a promising football player’s career is jeopardised by the unreasonable hold up in determining his application.

S v SSHD



In light of this lengthy delay the Home Secretary, under challenge in the Administrative Court, gave assurances that he will ‘prioritise those who may pose a risk to the public, and then focus on those who may easily be removed, those receiving support, and those may be granted leave…’ Once this policy was in place the Court declared both the policy and the underlying exercise lawful.

S arrived in the United Kingdom in from Liberia when he was merely 8 years old. A family friend arranged his travel following the arrest of his family and he was left at the doorstep of a local mosque. S was taken into Social Services’ care and solicitors were instructed to apply on his behalf for asylum as an unaccompanied asylum seeking minor. The application was refused.

S was however a child with no identifiable family in Liberia (since his arrival, S has had no contact with family or friends). S was therefore allowed to remain having been granted Discretionary Leave for three years. This grant was in line with the Secretary of State’s policy not to remove abandoned children unless their adequate care in their country of origin is available, and it is accepted that Liberia is not in a position to provide such care.
In 2006 S, then 11 years old, applied for an extension of his Discretionary Leave. S continued to live with his foster family and after initial period of distress and anxiety, started to settle well into his new environment. Shortly afterwards his local Championship football team recognised his exceptional talent.

S’s application falls within the Secretary of State’s published criteria as to which applications in the legacy exercise should be considered as a priority. S is both receiving continuous support from Social Services and his application for an extension of leave is straightforward because of the above mentioned policy not to return abandoned minors in his circumstances.

It is surprising therefore that three years later S application remains unresolved and the UK Border Agency is not prepared to prioritise his matter. In the meantime it has been recognised that S skills are of the highest order and he has a real prospect of a professional future in
the game. It has been suggested that he is the greatest talent in his year group and it is envisaged that he could in the future be playing in the English national team.

Duncan Lewis have commenced judicial review proceedings on behalf of S arguing that UK Border Agency in its failure to decide S
application for three years has not paid attention to its published policy which recognises ‘that children continue to develop. They cannot put on hold the stages of growth and personal development as social and cognitive individuals, until a potentially lengthy application process is resolved. Every effort must therefore be made to achieve timely decisions for them.’
It is further emphasised that the unexpected consequence of the delay in resolving S’s application is that, if his matter is not resolved without further delay, his future professional career may be detrimentally affected. S may face a further lengthy application process when
he is about to turn 18 years old. This is a time when he normally, as a promising footballer would be in the beginning of a professional career, and would otherwise expect to travel extensively for fixtures abroad and training. This possibility is not open to him whilst his claim remains undetermined, as by leaving the United Kingdom he would automatically withdraw his application.

The courts have previously found that the delay per se in deciding applications caused by the introduction of the legacy exercise was not unlawful. In light of cases like S, it remains a question if the UK Border Agency policy at it is operated in practice is unlawful in light of the
newly introduced duty on the Secretary of State to make arrangements for ensuring that immigration, asylum, nationality and customs functions are discharged having regard to the need to safeguard and promote the welfare of children.


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