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:

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

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:

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:

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:

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

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:

Collins J commented:

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:

The relevance of delay on its own;

Abuse of power;

The Article 8 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:

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:

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 -

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

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 -

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

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:

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

Were the decisions made between 2001 and 2003 legally flawed, because of failure to apply the correct policy?

If so, what was the relevance (if any) of that finding to the legality of, or the court’s powers in respect of, the 2004 decisions, made when the policy was no longer in force?

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:

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::

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:

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 –

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:

Serious administrative errors by the Secretary of State at the earlier stage had resulted in “conspicuous unfairness amounting to an abuse”, and thus illegality;

The court should “give such relief as it properly can”;

Although the applicant was no longer entitled to refugee status as such, the Secretary of State had a “residual power” to grant indefinite leave;

The grant of indefinite leave would provide a remedy for the unfairness;

There were no countervailing considerations of public interest;

Accordingly, the “appropriate response in the circumstances” would be for the court to declare that ILR should be granted.

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:

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

In deciding that the claimant could apply from Afghanistan, the Secretary of State failed to take account of the “possibly insurmountable” difficulties in practice of obtaining entry clearance from there; this (at least against the background of excessive delay) made the decision unlawful.

The decision to certify under section 96 was in any event wrong in law, and should be quashed.

On reconsideration, the Secretary of State would be bound to take account of all the circumstances, including both the history of the case, and the practical difficulty of obtaining entry clearance from Afghanistan.

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:

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.