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

It is well known that publicly accepted understaffing in the Home Office Immigration and Nationality Directorate (IND) has in the recent past resulted in delays in dealing with asylum and immigration cases. This is a delay case. It is mainly an immigration case in which Mrs A, the claimant respondent, a Jamaican national, entered the United Kingdom in February 1999 on a temporary visitor’s visa; was later granted temporary leave to remain as a student; had that leave extended; but at the end of the extension remained in the United Kingdom unlawfully. Mrs A had with her at the time three children, a daughter and two sons, who had arrived in the United Kingdom on dates in 2000 and applied for student visas which were refused. In April 2002, she and her three children had been served with notice that they were liable to administrative removal because they were in the United Kingdom unlawfully.

On 20^th February 2002, Mrs A had made a now admittedly fraudulent application for asylum which was refused. She eventually withdrew an appeal against that refusal.

In April 1999, she had met her future husband, Mr A, a British Citizen, whom she married on 11^th April 2003. She had been living with him since about December 2002. At the time of her marriage, her presence in the United Kingdom was, as I have said, unlawful. Less than a fortnight later, on 23^rd April 2003, she applied to be allowed to stay in the United Kingdom as the wife of a settled resident British Citizen.

At the time of this application, it had no proper basis and, if it had been dealt with promptly, was bound to fail. Mrs A and her children were in the United Kingdom unlawfully and she did not satisfy the guidelines for marriage applications for over-stayers in a document referred to as DP3/96.

The Secretary of State did not however determine Mrs A’s application until 22^nd March 2005, 23 months after it was made. On the basis of this delay and what had occurred in the meantime, Mrs A successfully contended in judicial review proceedings before Collins J on 16^th May 2006 that it would be a disproportionate and unnecessary insistence on adherence to the relevant immigration rules to remove Mrs A and her children to Jamaica and a breach of their rights under Article 8 of the European Convention on Human Rights. Collins J quashed the Secretary of State’s decision of 22^nd March 2005 and subsequent removal directions and ordered the Secretary of State to reach a decision in accordance with the judgment. This is the Secretary of State’s appeal against that decision and order with permission given by Keene LJ and Sir Peter Gibson upon an oral hearing.

At the time of her marriage to Mr A on 11^th April 2003, Mrs A was thirteen weeks’ pregnant. She gave birth to twins on 19^th August 2003. Meanwhile on 14^th May 2003 the IND wrote to her acknowledging her marriage application, saying that it would be screened by a caseworker within five weeks at which stage a decision would be made or a progress report given. It was stated with underlined emphasis that Mrs A should make no assumption about how long it might take for the IND to take a decision on her application. Once the application had been initially considered and if there was no immediate decision, the Secretary of State would be able to give an estimated decision date.

On 21^st May 2003, the IND wrote to Mrs A as promised to inform her of the progress of her application. It had been accepted as valid but could not be decided on initial consideration. The letter stated that such cases were subject to considerable delay because of the number of applications and backlog of work. It was said that the IND was working hard to reduce decision times. On current performance, it was estimated that Mrs A’s application would be decided by February 2004. It would be helpful if she did not make other than urgent enquiries about the progress of her application before that date.

In a letter bearing the date 21^st October 2003, but probably in fact sent shortly before 17^th February 2004 when the IND received it, Mrs A wrote referring to her application of 23^rd April 2003 and “my subsequent letter dated 21 October 2003”, and saying that it was now almost ten months since she put forward her application. She had telephoned “this week” to chase up progress and had been told that her application had still not been processed and that she could not be given any indication when it would be finalised. She asked to be told exactly when she was likely to hear.

Mr A wrote a chasing letter on behalf of his wife in April 2004 saying that his wife had received no reply to her February 2004 letter. He wrote again in understandably more emphatic terms on 27^th January 2005 sending a copy of this letter to his MP, Stephen Pound, who himself wrote on 4^th February 2005. The IND replied to Stephen Pound in 11^th March 2005, saying that Mrs A’s application had been carefully considered but refused.

The correspondence between 21^st May 2003 and 11^th March 2005 inclusive to which I have referred, of some significance to the issues in these proceedings, was not before Collins J. This court admitted it as fresh evidence upon the Secretary of State’s application. Mr Ollennu on behalf of Mrs A upon consideration did not oppose the application. Mr Swift on behalf of the Secretary of State referred in support of his application to R v Secretary of State for the Home Department ex parte Momin Ali [1994] 1 WLR 663, an appeal to this court in an immigration judicial review case, in which Fox LJ, agreeing with Sir John Donaldson MR, referred at page 673G to “the existence of a wider discretion in the court to admit fresh evidence on this appeal than exists in ordinary civil litigation”. Since the application to admit the fresh evidence was not opposed, it was unnecessary to consider in detail the application to this case of Rule 52.11(2) of the Civil Procedure Rules and authorities summarised in paragraph 52.11.2 of the 2007 edition of the White Book. I simply record the provisional view, which I had reached before Mr Ollennu made his sensible concession, that the application should be allowed in the interests of a just result when the fact that the evidence was not before Collins J appeared to be the responsibility of each of the parties.

The Secretary of State’s decision refusing Mrs A’s application, reported to Stephen Pound in the letter of 11^th March 2005 was not given to Mrs A until the decision letter of 22^nd March 2005. Mrs A did not satisfy the requirements of paragraph 284 of the Immigration Rules because she was not living lawfully in the United Kingdom. She did not come within the policy guidelines (DP3/96) for dealing with marriage applications for over-stayers. Her marriage, although it was genuine and subsisting, did not pre-date by two years the service of a notice of liability to removal. It was reasonable to expect that both she and her husband would be aware of her precarious immigration status. Her husband, although a British citizen, was free to accompany her and could reasonably be expected to live in Jamaica. Her two infant children who were British citizens were young enough to adapt to life abroad with their parents. The three older children had grown up in Jamaica and could re-adapt to life there. The position of her family did not constitute a sufficiently compelling reason for making an exception to the normal practice of removing those who had remained illegally. There would be no breach of Article 8 of the European Convention on Human Rights. Mrs A’s circumstances were not sufficiently compelling to warrant leave outside the rules. Because Mrs A could have put forward the reasons set out in her marriage application in her appeal against the Secretary of State’s refusal of her asylum and human rights claim, which she withdrew, the Secretary of State certified the claim under section 96 of the Nationality Immigration and Asylum Act 2002, thereby depriving her of a right of appeal against the decision to refuse the marriage application. Hence the present claim for judicial review.

On the same day as writing the decision letter, the Secretary of State served Mrs A and her three older children with notices of decisions to remove them as being unlawfully in the United Kingdom. On 3^rd June 2005, Mrs A applied for judicial review of these decisions contending that it would be wholly disproportionate with the proper running of immigration control to send her and her children to Jamaica and a breach of Article 8 of the European Convention on Human Rights. The application stressed that Mr A is a British citizen working as a senior lawyer for the London Borough of Tower Hamlets and that it would be unreasonable to expect him to resign and go to Jamaica with his wife; and contended that the Secretary of State had failed sufficiently to take into account the detrimental effect of removal on the three older children. Evidence in support of the application included statements from Mrs A and her husband and documents supporting the educational progress of the children. The Secretary of State considered this material and on 27^th June 2005 wrote a detailed letter supplementary to the decision of 22^nd March 2005. This letter again rejected the Article 8 claim as being insufficiently compelling and stated that it would not be unreasonable to expect Mrs A to return to Jamaica and seek to return to the United Kingdom with the correct entry clearance to join her husband in the United Kingdom.

On 5^th July 2005, Collins J gave written permission to bring the judicial review proceedings. He wrote that there seemed to be no excuse for the two year delay in dealing with Mrs A’s application for leave to remain, and that, although the Article 8 threshold is a high one to establish disproportionality, the delay in particular might suffice. The parties were thus on notice that the court might regard delay as significant, even though the judicial review application had not emphasised the delay, as distinct from its consequences for the family. The same applied to Mr Ollennu’s admirably succinct skeleton argument for the hearing before Collins J. The Secretary of State for his part did not seek to explain the delay with reference for instance to the evidence now admitted as fresh evidence before this court.

On 25^th September 2005, Mrs A gave birth to a further child.

The judgment may be found at [2006] EWHC 1489 (Admin). Having related the facts and circumstances leading up to Mrs A’s marriage application, Collins J said that unfortunately, so far as the evidence before him went, the Secretary of State did not reach a decision until some 22 months after the letter of 14^th May 2003, in which Mrs A had been promised a progress report within five weeks. He understood and stated that there had been no progress report, which this court now knows there had been. The result of the delay was that Mrs A’s family life had become more established in this country. If the decision had been made within a reasonable time, it would have been quite impossible to challenge it. There would have been no wholly exceptional circumstances. Her claim for asylum had been deliberately false and she and her husband certainly knew that her position was precarious. No excuse for the delay had been produced despite the terms of the judge’s own grant of permission. It was far too late to permit counsel for the Secretary of State to investigate if there was any excuse. The court was entitled to infer that there was no excuse. It was not a complicated matter. The judge said at paragraphs 11 and 12 of his judgment:

“There is no good reason why the Home Office should take nearly two years to decide upon an application; and Mr Patel has submitted that there is no additional prejudice as a result of the delay because the situation, so far as the claimant is concerned, has not changed. That, in my view, is a submission which lacks merit. It certainly lacks humanity. It must be obvious that the longer the husband and wife and their family are able to remain in this country and put down roots in this country, the more hard it will be for them to be uprooted and for the family life to be interfered with in the way that is suggested.

The claimant’s husband in his position would find it, to say the least, difficult, if not impossible, to uproot himself, to lose the position he has here, to go to Jamaica with no prospects of any means of livelihood. The alternative is that she goes and has to apply to come back here to join him. It is difficult to see on what basis such an application could reasonably be refused. One bears in mind the importance of not allowing people by acting unlawfully to jump the queue and to avoid the necessary immigration controls. But there is no reason in this case to believe that it would be reasonable to refuse in due course an application to join her husband here if one was made.”

The judge then referred to Secretary of State for the Home Department v Akaeke [2005] EWCA Civ 947 to the effect that delay of itself was capable of establishing that a decision to return in the context of Article 8 might be disproportionate even if the delay had caused the applicant no prejudice. The delay in that case had demonstrated such breakdown of the system of immigration control that the Tribunal was entitled to find that confidence was unlikely to be materially improved by maintenance of a rigid policy of temporary expulsions. That seemed to the judge to be the position in the present case. The delay was inordinate and inexcusable. The judge was not convinced that there was no resulting prejudice. He appreciated that there was administrative pressure on the Secretary of State. But it would be quite wrong to permit this sort of unexplained delay. It would not be proportionate to remove Mrs A temporarily to enable her application to be made from Jamaica. That would be quite unnecessary to maintain proper immigration control when the Secretary of State had been guilty of this sort of inordinate and inexcusable delay. It was an exceptional case because of the delay in which it would be disproportionate to remove Mrs A having regard to Article 8.

Article 8 of the European Convention on Human Rights provides that everyone has the right to respect for his private and family life; and there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. By section 6 of the Human Rights Act 1998, it is unlawful for a public authority to act in a way which is incompatible with a convention right. In the present context, both the Secretary of State and the court are public authorities – see section 6(3) of the 1998 Act.

The judge did not in terms refer to authorities which addressed the court’s approach to Article 8 in the context of immigration policy and control. But he obviously had in mind in his use of expressions such as “disproportionate” and “wholly exceptional” then antecedent cases which included R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840; R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368; and Huang v Secretary of State for the Home Department [2006] QB 1.

In Mahmood an illegal entrant applied for leave to remain on the basis of his marriage. This was refused on grounds broadly similar to those in the present case. The Secretary of State stated, however, that it was open to the applicant to apply from abroad in the proper manner for entry clearance to return to the United Kingdom as a foreign spouse. The decision was made before the inception of the Human Rights Act 1998, but this court in effect applied the Convention as if it had the force now accorded to it by the 1998 Act. In that context, Laws LJ said at paragraph 23:

“Firm immigration control requires consistency of treatment between one aspiring immigrant and another. If the established rule is to the effect – as it is – that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would, in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin.”

In Razgar, the issue was whether in judicial review proceedings an applicant’s reliance on Article 8 to resist removal to a safe third country was manifestly unfounded for the purpose of section 72(2)(a) of the Immigration and Asylum Act 1999. Lord Bingham of Cornhill said at paragraph 17 that a reviewing court addressing that question must consider how an appeal would be likely to fare before an adjudicator. The reviewing court must ask itself essentially the questions deriving from the terms of Article 8 which would have to be considered by an adjudicator. Those questions included whether the interference with private or family life was necessary in a democratic society in the interests of the matters to which Article 8 refers (question (4)); and, if so, whether such interference is proportionate to the legitimate public end sought to be achieved (question (5)). Lord Bingham said at paragraphs 19 and 20:

“Where removal is proposed in pursuance of a lawful immigration policy, question (4) will almost always fall to be answered affirmatively. This is because the right of sovereign states, subject to treaty obligations, to regulate the entry and expulsion of aliens is recognized in the Strasbourg jurisprudence (see Ullah [2004] 2 AC 323, 339, para 6) and implementation of a firm and orderly immigration policy is an important function of government in a modern democratic state. In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an adjudicator answering this question other than affirmatively.

The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might have been made by an adjudicator on appeal. In Secretary of State for the Home Department v Kacaj [2002] Imm AR 213, 228, para 25, the Immigration Appeal Tribunal (Collins J, Mr CMG Ockelton and Mr J Freeman) observed that: ‘Although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate.’ In the present case, the Court of Appeal had not doubt [2003] Imm AR 529,539, para 26, that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis.”

In Huang, this court held that on an appeal to an adjudicator under section 65 of the Immigration and Asylum Act 1999, where the Secretary of State had refused applications which relied on Article 8 of the European Convention on Human Rights by applicants who had no entitlement under the Immigration Rules to enter or remain in the United Kingdom, an adjudicator’s duty was to see whether an exceptional case had been made out such that proportionality required a departure from the normal rule. The applicant would succeed only if the case was truly exceptional on its facts. Laws LJ, giving the judgment of the court, said at paragraphs 57 and 58 that by the Immigration Rules Parliament by means of secondary legislation struck the balance between the public interest and the private right, and the court would accord very considerable respect to the balance so struck. He said at paragraphs 59 and 60:

“The true position in our judgment is that the Human Rights Act 1998 and section 65(1) require the adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant’s favour notwithstanding that he cannot succeed under the rules.

… This approach recognizes that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive in all cases. There will be a residue of truly exceptional instances. In our respectful view such an approach is also reflected in Lord Bingham’s words in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, para 20.”

It was after the decision of Collins J in the present case that Huang was considered and decided in the House of Lords [2007] 2 WLR 581. There was a single opinion of the committee delivered by Lord Bingham, who said that the appeals raised the question of the decision-making role or function of appellate immigration authorities when deciding appeals under section 65 of the 1999 Act. He said at paragraph 6 that the applicant’s failure to qualify under the Rules was the point at which to begin, not end, consideration of a claim under Article 8. The statutory provisions for appeals, read purposively and in context, made it plain that the task of an appellate immigration authority, in deciding whether the challenged decision was unlawful as incompatible with a Convention right or compatible and so lawful, was not a secondary reviewing function (paragraph 11). The appellate immigration authority must decide for itself whether the impugned decision was lawful. Earlier cases inconsistent with this do not describe the correct approach, although they were right to recognize that the judgment of the primary decision-maker, on the same or substantially the same factual basis, is always relevant and may be decisive. In deciding an appeal under section 65, the appellate immigration authority is not reviewing the decision of another decision-maker. This in contrast with a decision on judicial review (as in the present case) where “although the Convention calls for a more exacting standard of review [than that in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 or R v Ministry of Defence ex parte Smith [1996] QB 517], it remains the case that the judge is not the primary decision-maker”. Lord Bingham derived this from the opinion of Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 (paragraph 13).

At paragraph 14, Lord Bingham said:

“We think, with respect, that there has been a tendency, both in the arguments addressed to the courts and in the judgments of the courts, to complicate and mystify what is not, in principle, a hard task to define, however difficult the task is, in practice, to perform. In describing it, we continue to assume that the applicant does not qualify for leave to enter or remain under the rules, and that reliance is placed on the family life component of Article 8.”

The first task of the appellate immigration authority is to establish the relevant facts. This will include assessing the sincerity of the applicant’s evidence and the genuineness of his or her concerns and evaluating the nature and strength of the family bond (paragraph 15). Lord Bingham then said at paragraph 16:

“The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under Article 8(2). There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on. … The giving of weight to factors such as these is not, in our opinion, aptly described as deference; it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice.”

Contrary to the conclusion reached by the Court of Appeal, the House of Lords concluded that the Immigration Rules could not be taken to strike the right balance in most cases because they were not the product of active debate in Parliament where non-nationals seeking leave to enter or remain are not in any event represented. An applicant may fail to qualify under the Rules and yet have a valid claim by virtue of Article 8 (paragraph 17). The crucial question is likely to be whether the interference or lack of respect complained of is proportionate to the legitimate end sought to be achieved (paragraph 18). Proportionality is a subject of such importance as to require separate treatment. This feature is the need to balance the interests of society with those of individuals and groups (paragraph 19). Lord Bingham then said at paragraph 20:

“In an Article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, para 20. He was there expressing an expectation, shared with the immigration appeal tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under Article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test.”

I have summarised the House of Lords decision in Huang at some length because it is the latest relevant decision of the House binding on this court, which in some respects modifies the approach of this court which was then under appeal. There have been a number of appeals to this court considered since the decision of Huang in the House of Lords. On 25^th April 2007, one constitution of this court decided MT (Zimbabwe) v Secretary of State with reference to Huang in the House of Lords. On the same day, another constitution put over a decision in AG (Eritrea) v Secretary of State now fixed for hearing with another appeal on 19^th June 2007. The avowed purpose of the court in AG (Eritrea) was to give guidance on how, in the light of Huang in the House of Lords, cases decided in the Asylum and Immigration Tribunal before that decision should be approached.

If I had thought that it was necessary for this court in the present appeal to consider and pronounce upon a finely analysed application of Huang, I should have been strongly inclined not to do so, or at least not to do so immediately, until the court had achieved a unified approach to that subject. However, I do not consider that a finely analysed application of Huang is necessary in this case, and neither party before us suggested that it was. This is mainly because, as I said at the outset of this judgment, this is a delay case in which, delay apart, Mrs A has no substantial Article 8 case at all. Collins J approached the matter with proper inferential reference to this court’s decision in Huang. His decision, based on his view that the Secretary of State’s delay was inordinate and inexcusable and with reference to Akaeke, will not be impugned by reference to such modifications of Huang as emerged from the decision of the House of Lords. That decision is in any event binding on this court and capable of being applied to the facts of this case. The one gloss on that is that Huang concerned the approach of appellate immigration authorities under section 65 of the 1999 Act, whereas the present proceedings are for judicial review – as to which see paragraph 22 above. But, on the present facts, analysis of any difference between the approach of a primary statutory appellate decision-maker and a reviewing court subject to a “more exacting standard of review” will tend to complicate and mystify what in the end must be a matter of basic judgment.

To consider, therefore, the matter of delay, since the decision of Collins J in the present case, this court decided HB (Ethiopia) v Secretary of State for the Home Department [2006] EWCA Civ 1713. Four appeals were listed as test cases to clarify the law on the effect of delay by the Secretary of State on claims that relied on Article 8 to resist removal from the United Kingdom. None of the applicants had rights to enter or remain under the law of asylum or otherwise under this country’s immigration law. They all relied on Article 8(1) and asserted that delay in dealing with their cases deprived the Secretary of State of the ability to assert that their removal was justified under Article 8(2). Buxton LJ, giving the only substantial judgment with which Latham and Longmore LJJ agreed, accepted that it was no function of this court to discipline or punish the Secretary of State and his department, and that it would not be appropriate to grant a party relief that would otherwise not be available just in order to express concern or censure over administrative failings.

Buxton LJ reviewed the authorities, referring first to Razgar and to Huang in the Court of Appeal, neither of which were delay cases. The delay cases considered were Shala v Secretary of State for the Home Department [2003] EWCA Civ 233; Strbac v Secretary of State for the Home Department [2005] EWCA Civ 828; [2005] Imm AR 504, which itself included reference to Anufrijeva [2004] QB 1124; and Akaeke v Secretary of State [2005] EWCA Civ 947; [2005] INLR 575. In Akaeke (relied on by Collins J in the present case), Mrs Akaeke’s in country application for admission on grounds of marriage took more than three years to be considered by the Secretary of State. The immigration appeal tribunal described this as a “national disgrace” and said that when the system of immigration control had broken down to that extent it could not be said that the fair and firm operation of that system required the application to her of the rule preventing her from applying from within the country. Buxton LJ emphasised with reference to Akaeke and elsewhere in his judgment the distinction between a procedural requirement that applications should be made outside the United Kingdom, and the question whether delay in itself could affect a substantive determination under Article 8(2).

In paragraph 24 of his judgment, Buxton LJ drew conclusions which included:

“(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, the 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 paragraph § 25].”

The second sentence of Buxton LJ’s (ii) may need modification in the light of Huang in the House of Lords so that it would read “The number of claimants not covered by the rules and supplementary directions but entitled to succeed under Article 8 will be a very small minority.” I do not consider that for present purposes Huang in the House of Lords necessarily requires modification of Buxton LJ’s subparagraph (iv).

Mr Swift, for the Secretary of State, submits that Collins J’s decision was wrong for four distinct but related reasons. He submits, first, that the judge was wrong on the facts as they are now known to conclude that the delay was inordinate and inexcusable. This was not an extreme case of national disgrace where the system had so broken down that it would be inequitable to enforce procedural rules. Second, he submits that the judge was wrong to regard Mrs A’s case as exceptional or, as he might now submit, one of the very small minority in which it should be regarded as disproportionate to insist on the procedural rule that Mrs A should make her application from outside the United Kingdom. The delay, during which the family had been together and their family life had not been interfered with, had not caused substantial prejudice. Third, Mr Swift submits that the judge was wrong to place weight on his view that a subsequent application for entry clearance could not reasonably be refused. This simply did not enhance Mrs A’s Article 8 case and was not a reason why she should jump the queue. I say at once that this submission seems to me to have force. Fourth, Mr Swift submits that the judge could not properly conclude on an application for judicial review that the Secretary of State’s decision was a disproportionate interference with Mrs A’s right to family life and that of her children.

Mr Ollennu submits that the judge’s decision was entirely sustainable for the reasons he gave. The fresh evidence does not excuse the delay. It merely outlines certain correspondence. The delay was indeed inordinate and would make it a totally disproportionate interference with Mrs A’s Article 8 rights to remove her.

In my view, there is an air of unreality about this appeal. Collins J’s decision was made more than a year after the Secretary of State’s refusal of Mrs A’s application, and the decision of this court will be made more than two years after the decision under review. As Mr Swift upon taking specific instructions acknowledged, if the appeal is successful, the Secretary of State will have to reconsider whether to remove Mrs A and her children in the light of the passage of further time. Yet this court has to review the original March 2005 decision as at the time it was made and with reference to the reconsideration of it in June 2005.

In my judgment, the fresh evidence, which Collins J necessarily did not have, puts the case in a significantly different light. This requires this court to reconsider the matter and make its own decision with the benefit, which again Collins J did not have, of this court’s decision in HB (Ethiopia) and Huang in the House of Lords.

I look first at the nature and strength of Mrs A’s Article 8 family life claim. At the time of her marriage application in late April 2003, her reliance on Article 8, which was her only case, was weak. She was herself an over-stayer who had made a fraudulent claim for asylum. The older children, who had come from Jamacia, were not entitled to be here. Apart from those children, her married family life was scarcely established. She had lived with her future husband for a few months and they had married barely a fortnight before her marriage application. The marriage was genuine and there is no reason to doubt the sincerity of her and her husband’s evidence. In the 23 months between the application and the decision, her twins were born, the elder children’s life and education continued and no doubt the family became more established and settled. She knew, however, that she was not entitled to be in the United Kingdom. She knew also from late May 2003 that her application would not be dealt with until at least February 2004 because of a backlog of such applications. During that period and thereafter, her immigration position was indeed precarious.

The matters which tell in favour of refusing her application and their intrinsic strength are those related in the cases which I have referred to at some length earlier in this judgment. They are in short the legitimate need to operate consistently a fair policy and procedure for dealing with applications such as these. This relevantly requires those who are not lawfully entitled to be in the United Kingdom to make marriage applications from outside the United Kingdom. It is not to be supposed that every such application will succeed, but overriding the policy is plainly capable of being unfair to those many aspiring entrants who abide by the rules. These matters are recognized as providing a lawful and necessary reason for overriding Article 8 rights in the case of an unlawful over-stayer which may properly be judged to be proportionate in all but a very small minority of cases. There is no attack in these proceedings on the policy itself whose comparative weight in the balance, intrinsically difficult to measure on its own, may be judged by the fact that Lord Bingham continues to expect it to be outweighed in a very small minority of cases only. The balancing question for the court upon an intense scrutiny appropriate to the subject matter is whether Mrs A’s case, which was hopeless at the time of her application, became one of that very small minority by reason of the passage of 23 months, but in reality, I think, by reason of the passage of the 13 months between February 2004 and March 2005.

I think not. The heart of Collins J’s decision in Mrs A’s favour was his judgment, critical of the Secretary of State, that the delay was inordinate and inexcusable. He did not have the benefit of the fresh evidence now before the court, and he was incidentally rightly critical of the absence of any evidence of this kind. The fresh evidence explains a significant part of the delay, and inferentially explains all of it, although Mr Swift does not seek to excuse the delay after February 2004. But it is not the function of the court to discipline or punish the Secretary of State and his department. The court’s task is not, I think, to pass a judgment on the nature and characterisation of the delay, but on the nature and strength of Mrs A’s rights under Article 8 including those resulting from the delay.

Because the balance to be struck is between the nature and strength of the applicant’s Article 8 rights as they have become and the need to maintain consistent and fair immigration policy and procedure which remains broadly constant notwithstanding delay in individual cases, I am not personally convinced of the logic of the proposition that extreme individual cases of delay may for that reason alone diminish the balancing strength of the policy and procedure. Of course extreme cases of delay may strengthen an applicant’s Article 8 rights if, as is likely, the family life becomes more entrenched. Nevertheless, if, as may be, HB (Ethiopia) obliges this court to consider whether the delay in Mrs A’s case is extreme to the point of national disgrace or of the system having broken down, so that it would be inequitable to enforce the procedural rules, in my judgment her case does not reach that extreme by a significant margin. If, as I think, the question is, or is also, whether the nature and strength of her Article 8 case as it became by March 2005 put it in the very small minority of cases which was not outweighed by the countervailing public interest, I do not consider that it was such a case again by a significant margin. I reach this conclusion because, in my judgment, the refusal of her application so that she and the children would be required to return to Jamaica to make her marriage application from there would not in March 2005 have prejudiced their family life in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8.

For these reasons I would allow the appeal.

I agree that this appeal should be allowed for the reasons given by May LJ.

I also agree.