S, R (on the application of) v Secretary of State for the Home Department

This appeal raises a difficult issue relating to the effect of adverse policy changes during the consideration of an asylum application. In particular, we are concerned with the scope of the judgment of this court in R (Rashid) v Secretary of State [2005] EWCA CIV 744 (“Rashid”). A subsidiary issue arises from the lack of provision for Afghans to apply for entry clearance from their own country.

The claimant is a citizen of Afghanistan. He entered the United Kingdom in September 1999, at the same time as his cousin (“HM”). They both applied for asylum on 17^th September. HM’s application was in due course refused on 16^th February 2002, but he was granted Exceptional Leave to Remain (“ELR”), and now has Indefinite Leave to Remain (“ILR”). In the claimant’s case, in spite of a number of letters from his solicitors, there was no substantive response for over two years.

In the meantime there were two significant policy developments – one general and one specific. First, in January 2001, targets set by a “Public Service Agreement” had the effect that (unknown to the claimant) older asylum applications such as his were “put on hold”, in order to meet targets on new applications. Secondly, in November 2001 and April 2002 there were changes in the policy towards Afghan asylum seekers, following the removal of the Taliban regime. I shall need to return in more detail to those changes.

The first significant response from the Home Office came on 25 January 2002, in the form of a letter stating:

"Unfortunately a sharp increase in applications for asylum received in 2001 has meant applications received prior to 2001 have been put on hold for the time being. [S] applied in September 1999 and I regret to say his claim is therefore unable to be considered at present. We are however fully aware that he needs to be interviewed before any decision can be made and we will invite him to attend the Home Office when it is convenient to do so."

Several further letters from the claimant’s solicitors produced no further response, until 7 July 2003 when the Home Office wrote again:

“I can advise you that your client's Home Office file is currently in a queue awaiting the booking of a substantive asylum interview. Unfortunately, I am not able to advise you at this time when the interview is likely to take place. I can assure you, however, that you will be informed of the date, time and location of the interview, once we are in a position to confirm your interview.”

The claimant was eventually interviewed on 12 March 2004 and on 16 March his claim was refused. His appeal was rejected in June 2004 by the Adjudicator, who accepted that he had been subject to persecution, but held that, since the Taliban had by then been ousted, he was no longer at risk. He had also made a claim under Article 8 of the Human Rights Convention, supported by a letter from his employer attesting to his value as a member of their staff. He did not at this stage mention any personal ties in this country. This also failed. Permission to appeal was refused on 12 November 2004.

On 11 October 2004 he applied for discretionary leave to remain in the UK. This was refused on 3 November 2005. The letter also certified (under s.96(1) of the Nationality, Immigration and Asylum Act 2002) that the matters on which he relied could have been raised before the Adjudicator, with the result that there was no right of appeal against the refusal.

On 25 November, his solicitors submitted a statement from the claimant’s girlfriend (“SB”), who was a married woman and a British citizen. The letter asked for the matter to be dealt with in confidence because of the sensitivity of her position. Her statement indicated that the relationship began in 2002. She added:

“I have discussed supporting his case in the past but he has said he did not want people to think that he was going out with me to get a visa and therefore refused to accept this support. I and his friends have now persuaded him to allow me to support his application. I shall be divorcing my husband [I have been involved in an unhappy marriage] and we shall marry after that.”

On 2 December 2005 the Home Office refused the application. The letter stated that the claim was "essentially based on the same factors as his previous claim". It continued:

“Full consideration has been given to Mr [S's] asserted relationship with a British citizen, proof of his girlfriend's nationality has not been provided. However, your client has knowingly entered into a relationship in the full knowledge that he did not have the right to remain here. It is considered that the persistence of their relationship within the UK would, from the outset, be precarious. In any case, your client has not provided evidence to support his assertion that he has established family life with his girlfriend, on his own admission they do not live together. I should add that even if family life in the UK does exist and removal would interfere with such family life, your client does not have the right to ignore legitimate immigration controls or to choose where he wishes to enjoy his private life. This office has considered your claim but has concluded that the result of Mr [S's] removal would be wholly proportionate. Following your client's removal, it will be open to him to make an application for entry clearance, which, if successful will allow him to return to the UK lawfully as a spouse/fiancé of a person settled here.”

On 7 December 2005, the claimant commenced the present proceedings for judicial review of the decisions of 3^rd November and 2^nd December 2005.

As I have noted, there were important policy changes during this period, both in relation to asylum applications generally, and specifically in respect of claims from Afghanistan. I will deal first with the latter.

The approach to Afghan asylum-seekers changed to reflect the developing political position in that country, following the invasion and the ousting of the Taliban regime in 2001. Under the policies applying until 15th November 2001, a credible claimant from that country could normally be expected to be granted ILR. Furthermore, until April 2002 even an unsuccessful asylum-seeker would normally have been granted ELR for 4 years (in recognition of the impossibility of returning anyone safely); and on the expiry of the 4 years, assuming good behaviour (which is not in issue in this case), he would have been granted ILR.

It is common ground, accordingly, that, if this claim had been dealt with before 18 April 2002, even if unsuccessful, the claimant would by now have obtained ILR, and would be irremovable. As already noted, his cousin HM who arrived on the same day received the benefit of that policy. Two friends (NA and AK), who arrived in 2001, and received ELR in the same year, have also obtained ILR.

In July 1998, the government issued a White Paper, Fairer, Faster and Firmer – A Modern Approach to Immigration and Asylum, setting out its policy for improving the handling of asylum claims. It referred to the inherited backlog of over 50,000 cases awaiting decision and over 20,000 queuing for an appeal hearing, some dating back to 1990, with the result that meritorious and needy claimants were being “condemned to a cruel limbo of worry and uncertainty over their future.” The Paper set out the policy for delivering faster decisions:

“The Government is aiming to ensure that by April 2001 most initial decisions will be made within 2 months of receipt and that most appeals to adjudicators will be heard within a further 4 months. Both those targets reflect average process times and the Government expects that many cases will be dealt with more quickly….” (para 8.9)

In a passage headed “Dealing with the asylum decision backlog”, the Paper said:

"In dealing with the backlog of cases it has inherited, the Government will adopt measures which are both firm and fair as well as promoting a faster process… the effects of long delays in reaching a decision will be taken into account and weighed with other considerations, but only in due proportion and in appropriate cases." (para 8.28)

The last sentence was further explained in the next paragraph. For the oldest cases, from before July 1993, the delay would normally be considered “so serious as to justify, as a matter of fairness, the grant of indefinite leave to remain”. For those dating from 1993 to 1995, specific compassionate circumstances might justify the same treatment. For those dating from after 1995, the delay would not normally be a material factor.

The aims of the White Paper were not met. The system had great difficulty in coping with a large increase in applications, which exceeded 70,000 for each year between 1999 and 2002. The average ages of cases dealt with were 35 months in 1999, 18 months in 2000, 13 months in 2001 and 7 months in 2002. In the subsequent 3 years they were about 12 months.

On 1 January 2001 a new factor came into play. A “Public Service Agreement” (PSA) between the Home Office and the Treasury set a target requiring that 60% of applications lodged on or after 1 January 2001 should be decided within 60 days. The evidence as to this is in the statement of Dr McLean, Assistant Director in the Asylum and Appeals Policy Directorate of the Home Office. I will set out the relevant part in full:

“Priorities as regards business planning had been set in terms of reducing backlogs of outstanding applications and delivering timely, high quality decisions, rather than in terms of specific groups of cases or types of application, other than those set out in fast track processes. On 1 January 2001 a Public Service Agreement (PSA) target was introduced requiring that 60% of new asylum applications resulted in a decision and service thereof within 61 days of the application being made. New applications were defined as those lodged on or after 1 January 2001 and therefore did not include the asylum application made by Mr. S. (PSA targets are written in HM Treasury’s Spending White Paper and are agreements between HMT and Government Departments. They aim to articulate in clear, specific and measurable terms the top level national priorities for the period of the spending review. PSAs are a clear commitment to the public on what they can expect for their money and each agreement sets out explicitly which Minister is accountable for delivering the target underpinning that commitment.) In late 2001 and early 2002 levels of performance were approximately 40%, at which point a number of changes were introduced to increase productivity, including the concentration of case working capacity on new asylum applications the subject of the PSA target so that any case that could not be decided and served by day 61 would be put aside until such time as resources allowed. There were, however, supplementary targets relating to processing times for older cases, but these were subordinate to the objective of meeting the PSA target. (Putting a case “on hold” means not sending the case for interview/decision until such time as instructions are issued by senior managers to begin processing cases.)”

Collins J commented:

“Thus the old cases were shelved while the PSA targets were sought to be achieved. It is difficult to see how this could be said to be fair since it clearly worked to the detriment of such as the claimant (and there were no doubt many in his position) whose application had not been dealt with by 1 January 2001. There is a suspicion that those such as the claimant were sacrificed so that it could be said that the Government was meeting a target of dealing with at least 60% of applications within 2 months. And it seemed particularly unfair to him when he saw his cousin and others who had entered at the same time as him with similar claims being granted ELR and subsequently ILR.”

I agree, save that I would go further. It is more than suspicion. We must take the frank evidence of Dr McLean at face value, on the assumption that, if there had been any other considerations relevant to the claimant’s case, he would have mentioned them. Thus, although he refers to “supplementary targets” for older cases, I deduce from the lack of detail, and his statement that they were “subordinate” to the PSA target, that they have no practical bearing on this case. In my view the only reasonable inference from his evidence is that during 2001 the targets set by the PSA became the determining factor in setting the programme. All other considerations, including fairness and consistency in the treatment of individual applicants, were ignored in order to meet the target.

It is convenient to separate three aspects of the present case:

Delay in handling an asylum application is often relied on in support of a claim for interference with private life, under Article 8 of the Human Rights Convention. That issue has been the subject of a number of cases in this court. Their effect was summarised by Buxton LJ in HB & Others v Secretary of State [2006] EWCA CIV 1713:

“i)

Delay in dealing with an application may, increasing the time that the claimant spends in this country, increase his ability to demonstrate family or private life bringing him within Article 8(1). That however is a question of fact, and to be treated as such.

ii)

The application to an Article 8 case of immigration policy will usually suffice without more to meet the requirements of Article 8(2) [Razgar]. Cases where the demands of immigration policy are not conclusive will be truly exceptional [Huang].

iii)

Where delay is relied on as a reason for not applying immigration policy, a distinction must be made between persons who have some potential right under immigration policy to be in this country (for instance, under marriage policy, as in Shala and Akaeke); and persons who have no such right.

iv)

In the former case, where it is sought to apply burdensome procedural rules to the consideration of the applicant's case, it may be inequitable in extreme cases, of national disgrace or of the system having broken down [Akaeke], to enforce those procedural rules [Shala; Akaeke]

v)

Where the applicant has no potential rights under specifically immigration law, and therefore has to rely on his rights under Article 8(1), delay in dealing with a previous claim for asylum will be a relevant factor under Article 8(2), but it must have very substantial effects if it is to influence the outcome [Strbac at p25]

vi)

The mere fact that delay has caused an applicant who now has no potential rights under immigration law to miss the benefit of a hypothetical hearing of an asylum claim that would have resulted in his obtaining ELR does not in itself affect the determination of a subsequent Article 8 claim [Strbac, at p32]

vii)

And further, it is not clear that the court in Strbac thought that the failure to obtain ELR on asylum grounds because of failure to make a timely decision could ever be relevant to a decision on the substance, as opposed to the procedure, of a subsequent Article 8 claim. Certainly, there is no reason in logic why that fact alone should affect the Article 8 claim…

viii)

Arguments based on the breakdown of immigration control or of failure to apply the system properly are likely only to be of relevance if the system in question is that which the Secretary of State seeks to rely on in the present proceedings: for instance, where a procedural rule of the system is sought to be enforced against the applicant [Akaeke]. The same arguments do not follow where appeal is made in Article 8 proceedings to earlier failures in operating the asylum system.

ix)

Decisions on proportionality made by Tribunals should not, in the absence of errors of principle, be interfered with by an appellate court [Akaeke].” (para 24)

As that summary makes clear, the general principle (exemplified by Strbac v Secretary of State [2005] EWCA CIV 848) is that mere delay will not normally improve an Article 8 case. Shala v Secretary of State [2003] INLR 349 and Akaeke v Secretary of State [2005] INLR 575 were exceptions to that principle. They were both distinguishable from the present case, because the claimants had a clear expectation of being allowed to enter, and the problems were purely procedural. In my view, Collins J was right, for the reasons he gave (paras 27-33), to hold that, in so far as the claim was based on delay alone, it must fail.

The claimant submits that this is not a case of mere delay, but of a deliberate decision in 2001 to postpone his and other backlog cases, for purely political reasons, and without any regard to fairness and consistency, or the impact of that decision on those affected. As in R (Rashid) v Secretary of State [2005] EWCA CIV 744, the claimant had been the victim of “conspicuous unfairness amounting to abuse of power”, for which the appropriate remedy (as in that case) was to declare that he was entitled to ILR.

Collins J decided the high test set by Rashid had not been satisfied on the facts of this case. He said:

“The question therefore is whether the delay in the circumstances amounted to conspicuous unfairness so as to constitute an abuse of power…

I am not impressed with the approach which was adopted because it put those who had made applications before January 2001 and whose applications had not been determined by then in a worse position. However, I am not in a position to say that that was so obviously and conspicuously unfair as to amount to an abuse of power. Indeed, it is difficult to see that delay by itself could, unless it was extreme and arose for wholly bad reasons in an individual case, enable a court to say that the decision made after the delay was unlawful if it deprived the person affected of some advantage he would have enjoyed if the decision had been made timeously…”

He noted also from evidence produced by the Home Office that by January 2000 the backlog of undecided asylum applications had exceeded 120,000, and that there had been a reorganisation in IND to try to deal with the volume of applications more efficiently.

Before considering that conclusion, it is necessary to analyse with some care the reasoning of this court in Rashid.

The applicant was an Iraqi Kurd. His claim for asylum had been refused by the Secretary of State in December 2001 and on appeal in June 2002. The refusal resulted from the Department’s failure to apply, or draw the adjudicator’s attention to, the applicable policy towards Iraqi Kurds at the time. Following a request for reconsideration, in March 2003, a new decision was made in January 2004. By that time the situation in Iraq had changed following the removal of Saddam Hussein's regime.

In January 2004 the Secretary of State refused asylum on the basis of the post-war asylum policy. In doing so, he applied the so-called Ravichandran principle ([1996] Imm AR 97) that an asylum application must be determined by reference to the circumstances at the date of the consideration. The refusal had been confirmed in a letter dated 5 August 2004, notwithstanding the Secretary of State’s express recognition that there had been -

“… a failure to follow the terms of the previous (but now redundant) policy that would, while Saddam Hussein's regime was still in power, have resulted in the grant of refugee status to Mr Rashid…”

An application for judicial review of the decisions of January and August 2004 succeeded before Davis J. He stated (para 45):

"It seems to me that in the circumstances of this case, such decisions connote such a degree of unfairness as to amount to a misuse – a word I rather prefer to "abuse" – of policy as to require the intervention of the court."

Having referred to authorities, he added:

“It will be clear from what I have already said that I take the view that the combination of (a) the unwarranted and unjustified failure on the part of the Secretary of State to apply his policy to the claimant at the time of his original asylum application when, had it been so applied, he would have been granted refugee status, and (b) the differentiation in treatment and consequent outcome accorded to Mr M and Mr A as compared to the claimant, and (c) the intervening moral detriment occasioned to the claimant, do, when all the factors are taken together, evince such a degree of unfairness as to amount to a misuse of power and to require the court's intervention.” (para 65)

He concluded:

“…I consider that the only proper decision that can be reached is to accord the claimant refugee status and the concomitant indefinite leave to remain…”

He granted a declaration to that effect (para 69).

This decision was in principle upheld in this court, although the declaration was limited to ILR (rather than refugee status). Pill LJ described the failures in the Home Office as “startling and prolonged”. The policy, which should have led to a grant of asylum to the claimant, had been in force for sixteen months following the claim for asylum, covering the time of the claimant’s interview, the refusal of his claim, the adjudicator’s hearing, and the refusal by the IAT of leave to appeal. The error had extended to instructions given to the Treasury Solicitor and to Counsel. “That state of affairs is quite unexplained, though bad faith is not suggested” (para 13)

In Mr Tam’s submissions on behalf of the Secretary of State, it had been accepted that failure to apply the correct policy at the time of the 2001 decision was an error of law, for which the court would have granted relief. As Pill LJ said, whether or not the claimant knew of it at the time, he had a legitimate expectation that the Secretary of State would apply his own policy (para 25). However, Mr Tam submitted that the position changed in March 2003. Thereafter, the reconsideration had rightly been based on the circumstances and policies then prevailing. The claimant was no longer entitled to refugee status, and there was no principled basis for the grant of the “half-way house” of indefinite leave to remain.

Pill LJ accepted that this it was not “a typical case of legitimate expectation”, but rather it was -

“… a claim of unfairness amounting to an abuse of power, of which legitimate expectation is only one application. The abuse is based on an expectation that a general policy for dealing with asylum applications will be applied and will be applied uniformly. Serious errors of administration have resulted in conspicuous unfairness to the claimant.” (para 34)

No “countervailing public interest” had been claimed. He concluded, in agreement with the judge:

“… that the degree of unfairness was such as to amount to an abuse of power requiring the intervention of the court. The persistence of the conduct, and lack of explanation for it, contribute to that conclusion. This was far from a single error in an obscure field. A state of affairs was permitted to continue for a long time and in relation to a country which at the time would have been expected to be in the forefront of the respondent's deliberations.” (para 36)

Unlike the judge, he did not think that the court could confer on the claimant refugee status; that depended on criteria set by the treaty, which no longer applied. However, having found an abuse, the court should intervene to give “such relief as it properly and appropriately can”. The Secretary of State had a “residual or general power” to grant indefinite leave under sections 3 and 4 of the Immigration Act 1971. He concluded:

“The court should, in my view, declare that the claimant is entitled to a grant indefinite leave to remain in the United Kingdom. That provides a remedy for the unfairness and is the appropriate response in the circumstances.” (para 39)

May LJ simply agreed with the reasoning and conclusion of Pill LJ.

Dyson LJ delivered a concurring judgment. He identified the critical issue:

“The stark question that arises on this appeal is which of the two considerations should prevail: justice and fairness which suggest the conclusion that, even if he is not now accorded full refugee status, the claimant should at least not be returned to Iraq, or the Ravichandran principle which suggests that he should be returned to Iraq.” (para 44)

Referring to Professor Craig’s four-part categorisation of “legitimate expectation” (Craig: Administrative Law 5^th Ed p 641), he put the present case in category (ii) “where a general policy choice has been departed from in the circumstances of a particular case”. He then cited R(Bibi) v Newham LBC [2001] EWCA CIV 607, [2002] 1 WLR 237 para 24, where the court said:

"In all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do."

He thought that the real problem arose in relation to the second question. As to that he noted in particular R v IRC, ex p Unilever plc [1996] STC 681, in which Simon Brown LJ had used the expression “conspicuous unfairness amounting to an abuse of power”. He continued:

“50… The more extreme the unfairness, the more likely it is to be characterised as an abuse of power. If the frustration of a legitimate expectation is made in bad faith, then it is very likely to be regarded as an abuse of power and, therefore, unlawful.

51.

In the present case, to hold the Secretary of State to the policy that was in force between December 2001 and March 2003 in relation to cases that he considered during that period does not of itself raise any wide-ranging issues of policy. I do accept, however, that to hold him to that policy in circumstances where, at the latest stage of the decision-making process, the policy had been withdrawn would infringe the important principle established by Ravichandran.

52.

But as against that, in my judgment it is clear that there has been conspicuous unfairness in this case… it is a remarkable feature of this case that, despite repeated requests for clarification and direct instructions from the interviewing officer, the caseworker and the presenting officer who were party to the original and appellate consideration of the claimant's case as to their state of knowledge of the policy, no response has ever been provided; not even after the grant of permission to apply for judicial review, when the Secretary of State had a duty of full and frank disclosure…

53.

In the absence of any explanation, I consider that the court is entitled at the very least to infer that there has been flagrant and prolonged incompetence in this case. This is a far cry from the case of a mistake which is short-lived and the reasons for which are fully explained. The unfairness in this case has been aggravated by the fact that, as explained by Pill LJ, the claimant was not treated in the same way as M and A, with whose cases his case had been linked procedurally. Had he been so treated, he would have had the benefit of the policy and been accorded full refugee status.”

54.

Accordingly, the answer to the second of the three questions identified in Bibi is that the Secretary of State acted unlawfully in choosing to ignore his policy. In so doing, he acted with conspicuous unfairness amounting to an abuse of power.

55.

As for what the court should do about it (the third question), I agree with what Pill LJ says at paras 37-40 of his judgment and having nothing to add.”

In analysing the judgments in Rashid, it is important in my view to bear in mind that there were logically two distinct questions:

Pill LJ seems to have dealt with this as principally a question of the appropriate remedy, rather as a separate issue of substance. Dyson LJ, in my view rightly, recognised it as a distinct issue, and one of some difficulty. He saw a tension between the requirements of fairness in respect of the earlier decisions, and the Ravichandran principle as applied to those under review. It was one thing to hold the Secretary of State to his policy while it was still in force, but another to do so in relation to decisions made after it was withdrawn.

The extra element needed to bridge that gap was “conspicuous unfairness”, sufficiently extreme “to be characterised as abuse of power”. Dyson LJ found that extra element in the combination of “flagrant and prolonged incompetence” and of inconsistency in the treatment of the applicant as compared to others in the same position. That resulted in the conclusion that the Secretary of State not only “acted unlawfully in choosing to ignore his policy”, but in doing so “acted with conspicuous unfairness amounting to an abuse of power” (para 54).

Thus, in Dyson LJ’s view, the issue was one of degree; unfairness might be sufficiently extreme to amount to “abuse of power”, and so trump the Ravichandran principle. That was how Rashid was interpreted by Collins J in R (R, H and AH) v Secretary of State [2006] EWHC 526 (Admin). In upholding a similar claim, he said:

“I recognise that cases such as this which justify relief such as is claimed here will be rare. The court has to decide whether the unfairness is such that it goes beyond that which should attract no relief other than that afforded by a right of appeal. I recognise that it is not possible to define where the line should be drawn with any precision. Inevitably, the circumstances of an individual case will be the deciding factor. It is only if the court is persuaded that the unfairness is so bad that abuse of power is an appropriate label that it will find in a claimant's favour.” (para 34)

The same approach was adopted by Mr Jay QC for the Secretary of State in this court, while reserving the right to challenge Rashid if the case goes further.

For my part, although the result in Rashid seems just, I do not find the reasoning altogether convincing. It seeks to transform “abuse of power” into a magic ingredient, able to achieve remedial results which other forms of illegality cannot match. That seems a considerable extension of the existing authorities, including those relied on in the judgments. In one of those authorities, R(Zeqiri) v Secretary of State [2002] Imm AR 42, Lord Hoffmann gave a useful summary::

“It is well established that conduct by an officer of state equivalent to a breach of contract or breach of representation may be an abuse of power for which judicial review is the appropriate remedy: see Lord Templeman in R v Inland Revenue Commissioners, Ex p Preston [1985] AC 835, 866-867. This particular form of the more general concept of abuse of power has been characterised as the denial of a legitimate expectation…. In principle I agree that an alleged representation must be construed in the context in which it is made. The question is not whether it would have founded an estoppel in private law but the broader question of whether, as Simon Brown LJ said in R v Inland Revenue Commissioners, Ex p Unilever plc [1996] STC 681, 695B, a public authority acting contrary to the representation would be acting “with conspicuous unfairness” and in that sense abusing its power.” (para 44)

Thus, as understood hitherto, abuse of power is not a special and more extreme category of illegality, but is rather a “general concept” underlying other “particular forms”. In the words of Laws LJ (R v Secretary of State for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1129), it has become “the root concept which governs and conditions our general principles of public law”. Similarly, Professor Craig (op cit p 655) described abuse of power as “the conceptual rationale” for the protection of substantive legitimate expectation, but added that it does not in itself furnish a “standard of review”.

I also have doubts about the weight put by the judgments upon the Department’s conduct. The court’s proper sphere is illegality, not maladministration. If the earlier decisions were unlawful, it matters little whether that was the result of bad faith, bad luck, or sheer muddle. It is the unlawfulness, not the cause of it, which justifies the court’s intervention, and provides the basis for the remedy. Conversely, if the 2004 decisions were otherwise unimpeachable in law, I find it hard to see why even “flagrant” incompetence at an earlier stage should provide grounds for the court’s (as opposed to the ombudsman’s) intervention.

Again, that aspect of the judgments does not seem to find support in the authorities. In Unilever, the case on which reliance was principally placed, the emphasis was on practical unfairness, rather than administrative failing. The Revenue had refused claims to tax relief on the grounds that the tax computations had been submitted out of time, even though for some 20 years previously they had accepted claims in similar circumstances without objection, and they had given no prior warning of the changed approach. It was common ground that the Revenue had a discretion to accept late claims, but there had been no express representation, such as to bring the case within the then established categories of legitimate expectation. It was held that, in exercising that discretion, it could not reasonably go back on its previous practice without notice.

This conclusion did not depend on the degree of incompetence shown by the Revenue, but on the substantive effect of the change of practice. Sir Thomas Bingham MR held that such action was “so unfair as to amount to an abuse of power” (p 691h), and also that it was “so unreasonable as to be, in public law terms, irrational” (p 692f), thus equating Preston abuse of power with the familiar CCSU criteria. The judgment of Simon Brown LJ is to the same effect. The passage cited by Pill LJ (at p 695a) reads:

“'Unfairness amounting to an abuse of power' as envisaged in Preston and the other Revenue cases is unlawful not because it involves conduct such as would offend some equivalent private law principle, not principally indeed because it breaches a legitimate expectation that some different substantive decision will be taken, but rather because either it is illogical or immoral or both for a public authority to act with conspicuous unfairness and in that sense abuse its power….”

This passage cannot be read as supporting a new and more potent category of judicial review, depending on the flagrancy of the administrative failing. On the contrary the expression “illogical or immoral” was clearly intended to assimilate the test to Lord Diplock’s definition of irrationality in CCSU (“outrageous in its defiance of logic or of accepted moral standards”), which had been mentioned in the previous paragraph.

Since the hearing my attention has been drawn to a interesting article by Mark Elliott (Legitimate Expectation, Consistency and Abuse of Power [2005] JR 281, 285). He acknowledges that Rashid represents a significant step forward; indeed, that it might be read as indicating “a possibility of intervention simply where something has gone badly wrong, even if the court cannot quite put its finger on it”. However, he sees the better interpretation as being that “abuse of power” is operating –

“… in the light of exceptional circumstances, to liberalise the application of existing heads of review (thus ensuring the protection of the norms underpinning them) by facilitating intervention in circumstances closely analogous to, but technically outwith, those in which such heads of review would usually operate.”

Our task, however, is not to search for conceptual explanations, but to extract a principled basis for deciding the present case. We are of course bound by Rashid for what it decided. In principle, that must be found in the majority judgment of Pill LJ. As I read his judgment, the steps in his reasoning (para 36-40) can be broken down as follows:

The key in my view must lie in his emphasis on the scope of the remedial powers of the Secretary of State (steps (iii) and (iv)). Although he seems to have expressed the result as an exercise of the court’s remedial discretion, the court itself had no power to grant ILR. Nor, on a conventional analysis, did it have power to direct the Secretary of State to grant ILR. The power and the discretion rested with the Secretary of State. It was not open to the court to assume that function (cf R v Barnet LBC, ex p Shah [1983] 2AC 309, 350F-G). However, it was open to the court to determine that a legally material factor in the exercise of that discretion was the correction of injustice. That proposition did not require express statutory authority. It was implicit in the principles of fairness and consistency which underlay the whole statutory scheme. Further, in an extreme case, the court could hold that the unfairness was so obvious, and the remedy so plain, that there was only one way in which the Secretary of State could reasonably exercise his discretion.

On that analysis of Rashid, the court’s intervention was directed at the appropriate target, and involved no conflict with Ravichandran. It respected the principle that the Secretary of State’s decision should be made on the basis of present circumstances. But it recognised that those circumstances might include the present need to remedy injustice caused by past illegality.

The present case differs materially from Rashid. There the starting point for the court’s intervention was a legally defective decision made when the beneficial policy was still operation. There was no doubt what the correct decision should have been. In this case, administrative delay meant that there was no such decision. Administrative delay in itself, even if it results in less favourable treatment, does not provide the basis for a remedy (see Buxton LJ’s point (vi)).

Mr Gill submits that this is not a case of mere delay, but of a deliberate and unlawful decision in 2001 to postpone his and other backlog cases, dictated solely by the requirements of the PSA. That is the additional ingredient which, as in Rashid, constitutes “conspicuous unfairness amounting to abuse of power”, and provides the basis for a similar remedy.

In my view, this submission is in principle well-founded. This can be seen as a textbook case of another well-established category of public law illegality, in this case the unlawful fettering of a discretion (see Craig op cit p530ff; Wade and Forsyth Administrative Law 9^th Ed p 322ff). A public authority may not adopt a policy which precludes it from considering individual cases on their merits, nor may it allow its treatment of applications to be dictated by agreement with another government body. A classic example of the latter is Lavender v MHLG [1971] 1 WLR 1231, in which the planning Minister was held to have fettered his discretion unlawfully, by adopting a policy to refuse planning permission on certain categories of agricultural land whenever it was opposed by the Minister of Agriculture. Although the principle is normally applied to substantive decisions on applications, I see no reason why it should not apply equally to a procedural decision to defer a whole class of applications without good reasons and without consideration of the effects on the applicants.

The Act does not lay down specific time-limits for the handling of asylum applications. Delay may work in different ways for different groups: advantageous for some, disadvantageous for others. No doubt it is implicit in the statute that applications should be dealt with within “a reasonable time”. That says little in itself. It is a flexible concept, allowing scope for variation depending not only on the volume of applications and available resources to deal with them, but also on differences in the circumstances and needs of different groups of asylum seekers. But (as was recognised by the White Paper) in resolving such competing demands fairness and consistency are also vital considerations.

It is clear from Dr Mclean’s evidence (as it has been from many cases coming before the courts) that the government was faced with a crisis in 2001, and it needed to take drastic measures to deal with it. Had those measures been based on a principled assessment of the issues and implications, no legal complaint could have been made. However, Dr McLean, fairly and frankly, makes no attempt to justify the decision in that way. On his evidence, the postponement of the old applications was an arbitrary decision, dictated only by the perceived need to meet the targets for dealing with new applications laid down by the agreement with the Treasury. In my view, that was unlawful, and (if it is necessary so to hold) an abuse of power.

It is possible, of course, that, even apart from that decision, the handling of the claimant’s application would have been delayed beyond the critical date of April 2002. To that extent the case is less clear-cut than Rashid. However, the evidence shows that similar applications made at the same time as his, and later, were dealt with in that timescale. The Secretary of State has adduced no evidence to suggest that his would have fared less well. The court is entitled to conclude on the balance of probabilities that he would have obtained ELR, and in due course ILR; and that his failure to do so was caused by the illegality.

Collins J was “not impressed” by the Department’s conduct, but felt unable to say that it was “so obviously and conspicuously unfair as to amount to an abuse of power”. For the reasons I have explained, I derive a somewhat different test from Rashid. The issue is not so much whether the unfairness is obvious or conspicuous, but whether it amounts to illegality which on reconsideration the Department has the power to correct. If it has such power, and there are no countervailing considerations, it should do so. Following Rashid the court has power to order reconsideration on the proper basis.

In view of my conclusion on the abuse of power issue, I can deal briefly with this point. Collins J did not uphold the claim under Article 8 in so far as it depended on the consequences of delay. However, he considered that there was an “added factor” in this case, based on the practical problems of obtaining entry clearance in Afghanistan. I should set out the reasoning in full. He said:

“33… The refusal letter of 3 November 2005 stated:

"Further to this there is no reason why your client cannot return to Afghanistan in order to apply for the correct entry clearance/work permit, given your client's keenness to work and set up his own business in the U.K."…

34 … There is no possibility of obtaining an entry clearance in Afghanistan. The British Embassy there has no facilities for issuing such clearances. The best that it can offer is to apply via the High Commission in New Delhi or possibly Islamabad or the embassy in Dubai. This must have been known to the Secretary of State in November and December 2005. There are thus very serious and possibly insurmountable obstacles to obtaining an entry clearance following return to Afghanistan. This coupled with the excessive delay in dealing with the claimant's application renders the decision to remove unlawful. It does not mean that the claimant is now entitled to ILR. But it does mean that he should be allowed to apply for the necessary leave based on his proposed marriage and his plans to set up business or to work here while remaining in the U.K.

35.

In addition, I am satisfied that the certification under s.96(1) was wrong. The defendant rejected the asserted relationship on the facts. However, those facts have not been properly investigated and there are arguably valid reasons why the relationship was not put forward to the adjudicator. If the claim is to be refused, there should be a right of appeal….”

As I understand that passage, it is making in substance three points:

Mr Jay has criticised the reliance placed by the judge on the problems of obtaining entry clearance. He says this point was not part of the pleaded case, and the information to the judge was accordingly incomplete. In any event, it is not related to the particular problems of this claimant, but, if well-founded, would apply to any potential immigrant from Afghanistan. In view of my earlier conclusion, it is unnecessary to go into this issue. If it becomes relevant in another case, it will be possible for the parties to advance any relevant evidence, and for the tribunal to consider the implications. That discussion will not be foreclosed by the decisions in this case, here or below.

Mr Jay also questions the judge’s conclusion on the section 96 certificate, which he says was unreasoned and unjustified. In particular, he submits, there were no valid (or in the words of s 96 “satisfactory”) reasons for the claimant’s failure to refer to his relationship (which began in 2002) in the earlier proceedings. Although he does not in terms say so, I assume the judge was referring to the reasons put forward in the girlfriend’s statement (enclosed with the solicitors’ letter of 25^th November 2005), in which she spoke of her recent decision to obtain a divorce so that she could marry the claimant, and her previous fears about supporting his case. I see force in Mr Jay’s submission that these are not even arguably “satisfactory” reasons for not putting the full case before the adjudicator. However, again it is unnecessary to explore that issue.

Finally, I have no difficulty in agreeing with the penultimate paragraph of Collins J’s decision:

“36.

I have no doubt that this claimant has not been treated fairly and that there has been a failure to deal with his claim efficiently. A delay of 4 ½ years is on any view excessive. People cannot be expected to put their lives on hold, particularly if they are young. The claimant was when he arrived in genuine need of protection and he has been condemned to a cruel limbo of worry and uncertainty over his future. He has now been here for over 7 years and on any view has established himself as a good worker and, it seems, a model citizen. He has seen his cousin and others granted ILR which has been denied to him because his claim was not dealt with earlier…”

I am content, like Collins J, to arrive at the conclusion (albeit by a different route) that the court is able to offer a remedy.

For these reasons, I would uphold the judge’s decision on the basis of the respondent’s notice, and order that the case be remitted to the Secretary of State to redetermine in the light of this judgment, with the expected consequence that the claimant will be granted ILR.

I agree that the appeal should be dismissed for the reasons given by Carnwath L.J., whose description of the facts I gratefully adopt.

The striking feature of this case is the decision by the Secretary of State in late 2001 or early 2002 to defer for an indefinite period consideration of outstanding applications for asylum made prior to 1^st January 2001 in order to meet PSA targets agreed with the Treasury for the processing of applications made after that date. A decision to defer some applications in order to give priority to others might have been lawful if it had some rational basis, but the explanation provided by Dr. McLean provides no grounds for thinking that there was any reason for deferring consideration of the earlier applications other than the desire to meet the new performance targets. I entirely agree with Carnwath L.J. that that was unfair.

If the claimant’s application had not been deferred, it is likely that it would have been considered by the Secretary of State at a time when Afghanistan was still under the control of the Taliban. In those circumstances he would either have been accorded refugee status and granted Indefinite Leave to Remain (“ILR”) or, if his application had been rejected, he would have been granted Exceptional Leave to Remain (“ELR”) for four years in accordance with the Secretary of State’s current policy recognising the difficulties of returning failed asylum seekers to Afghanistan. If he behaved well during that period he could expect to be granted ILR on application without further investigation. The likelihood, therefore, is that if his application had been considered in its ordinary turn he would have obtained ILR.

By March 2004, however, the position had changed dramatically. Following the overthrow of the Taliban the claimant was no longer at risk of persecution in Afghanistan and did not therefore qualify for refugee status. The decision of the adjudicator to that effect was correct and consistent with the decision in Ravichandran (Senathirajah) v Secretary of State for the Home Department [1996] Imm AR 97. Moreover, since there were no longer difficulties in returning failed asylum seekers to Afghanistan, the policy of granting ELR no longer applied and the claimant was liable to be returned in the ordinary way.

The important questions that arise for consideration in this case are whether in that context the Secretary of State’s decision to refuse the claimant’s application for discretionary leave to remain was unlawful, and if so, what relief the claimant is entitled to obtain.

I agree with Carnwath L.J. that the delay in dealing with the claimant’s application does not of itself improve his position under Article 8 of the European Convention on Human Rights which was the sole basis on which he was then able to resist removal. This is not a case in which he had established any prima facie right to enter the United Kingdom and is therefore distinguishable from cases such as Shala v Secretary of State for the Home Department [2003] INLR 349 and Akaeke v Secretary of State for the Home Department [2005] INLR 575. Nor was the evidence on which he relied in support of his application, which included evidence of matters that had taken place during the period of delay, of such weight as to make removal in accordance with the application of lawful immigration rules a disproportionate interference with his private or family life. Collins J. held that the Article 8 claim based simply on delay failed and in my judgment he was right to do so.

However, this is not a case of simple delay but one in which delay resulting from a deliberate decision to defer consideration of the claimant’s application for asylum operated in conjunction with a change of circumstances to deprive him of a benefit which he could otherwise have expected to obtain. Before the judge, and also before us, there was a tendency to approach the case as if the court were simply required to review the Secretary of State’s original decision to shelve the claimant’s application for asylum, but that is not the case. The only decisions that the court is asked to review are the Secretary of State’s refusal of his application for discretionary leave to remain in this country and his decision to issue a certificate under section 96(1) of the Nationality, Immigration and Asylum Act 2002 which was ancillary to them. The question we have to consider, therefore, is whether those decisions were unlawful having regard to the circumstances in which they were made.

The decision of this court in R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744 raised similar questions. In that case the applicant was an Iraqi Kurd whose claim for asylum had been rejected as a result of a failure to apply the current policy. By the time the matter was reconsidered at the applicant’s request the former regime in Iraq had been toppled and the applicant was no longer at risk of persecution. The Secretary of State therefore rejected his application. This court held the failure to apply the relevant policy at the time of the original application amounted to an abuse of power for which it could grant a remedy in the form of a declaration that the applicant was entitled to be granted ILR.

The decision in Rashid has been fully discussed by Carnwath L.J. with whose analysis and comments I respectfully agree. In particular, I agree that the key to a proper understanding of the decision lies in the court’s recognition that the Secretary of State had power to grant relief of a kind that would remedy the earlier injustice and that his failure to take such matters into account when making his decision laid it open to challenge.

The first question for us to consider in the present case is whether the Secretary of State’s decision to defer consideration of the claimant’s application was unlawful because it involved an abuse of power. Abuse of power has increasingly been recognised as a unifying principle underlying other well-recognised grounds for regarding administrative acts as unlawful: see per Laws L.J. in R v Secretary of State for Education and Employment ex p. Begbie [2000] 1 W.L.R. 1115, 1129. The expression “abuse of power” might suggest deliberate misconduct on the part of the Secretary of State or one of his officials with the intention of achieving some ulterior objective, but I think it is clear that it is not in fact limited to acts of that kind. The expression that has most commonly been used to identify abuse of power is “conspicuous unfairness”, a phrase that is more naturally directed to the consequences of the acts or omission in question than the motives behind them. I respectfully agree with Carnwath L.J. that abuse of process should not be regarded as a more serious form of unlawfulness than Wednesbury unreasonableness or denial of legitimate expectation, nor as one which gives rise to different and more far-reaching consequences.

In the end the court’s duty in upholding the rule of law in this context is to identify and set aside administrative acts and decisions which, for whatever reasons, are unlawful. Whether any particular act or decision meets the test of “conspicuous unfairness”, and is therefore to be regarded as unlawful on the grounds of abuse of process, will depend on the particular facts of the case. I doubt whether any cases which fall within other well-established grounds of intervention would not also satisfy the test of conspicuous unfairness, but there will from time to time be cases which, although not obviously falling within one of those established grounds, will be seen to have that quality. In my view the decision in the present case to defer indefinitely consideration of the claimant’s application for asylum falls into that category. It was conspicuously unfair to treat him and other outstanding applicants for asylum who had made their applications before 1^st January 2001 differently from those whose applications were made later for no better reason than to meet administrative targets applicable only to later claims.

The question which then arises is how that affects the decision of the Secretary of State in March 2004 to refuse the claimant discretionary leave to remain. Like Carnwath L.J., I do not find it altogether satisfactory to approach the question simply as if the court were being invited to grant a remedy in respect of an unlawful act committed some years earlier because the question that ultimately has to be decided on this appeal is not whether that earlier decision was unlawful but whether the later decisions were unlawful. However, I agree that the Secretary of State’s earlier unlawful decision, its consequences for the claimant and the injustice that would be caused to him if he were to be removed from this country are factors that have to be taken into consideration when deciding whether to grant discretionary leave to remain. Viewed in that way it is not so difficult to bring the case within the established principles of judicial review.

For these reasons, as well as for the reasons given by Carnwath L.J., I agree that the decisions should be quashed and remitted to the Secretary of State for reconsideration.

I agree with both judgments. I would only add that I have the gravest difficulty seeing how the fact that the challenged administrative act or decision falls within one category of unlawfulness as distinguished from another, and in particular the fact that it constitutes an abuse of power giving rise to conspicuous unfairness, can extend the remedies available to the court. It may of course be relevant in the choice of the available remedy and the terms of the guidance to the administrative body on any reconsideration of its previous decision or of the appropriate action to be taken.