FH & Ors, R (on the application of) v Secretary of State for the Home Department

These ten cases have been heard together because they all raise a similar issue. In each it is alleged that the defendant has failed to decide upon an application to be allowed to remain in this country within a reasonable time. The court was asked to order that the applications be considered forthwith and that declarations be made that the delay was unlawful.

The claimants' are what are described by the Home Office as incomplete asylum cases. This means that an initial decision was made on a claim for asylum and the application in question was a subsequent one. In most of the cases before me the original claim was rejected, an appeal was unsuccessful but removal had not taken place. There was then what was said to be a fresh claim based upon further evidence or circumstances which were said to justify a fresh consideration of the application. In FH, notwithstanding the refusal of her initial asylum claim, there had been a grant of discretionary leave to remain for a time on humanitarian grounds and her application was to extend her leave. In H, the initial refusal had been made as long ago as June 2000 and so no consideration had been given to any human rights claim, the refusal having been prior to the coming into force of the Human Rights Act 1998. This meant that he had an outstanding human rights claim which the defendant had to determine and, if refused, he had a right of appeal: see Pardeepan v Secretary of State for the Home Department [2000] I.N.L.R. 447. In SI and ZW, the appellate authority had upheld the defendant's decision to refuse asylum but had allowed their appeals under Article 8 of the European Convention on Human Rights. This had resulted in the grant of periods of discretionary leave which they were applying to extend.

All the cases are regarded as incomplete since that description applies to an asylum seeker whose application has been refused but who has not been removed. While there are differences in the factual backgrounds which I have set out, the question to be determined is common to all. It is whether the delays in dealing with the applications can be properly be regarded as unlawful so that some remedy can be granted by the court. It is not in the circumstances necessary to refer to any further facts of each claim, subject to matters which I specifically mention in the course of this judgment. I need only record the dates on which the relevant applications were made:-

At the commencement of the hearing, I was informed by Mr Jay, Q.C. that the defendant had agreed to consider FH's application as an exceptional case because of her age, her state of health and her need to have her position settled in particular because she wants to pay a visit to Mecca before her death (she is now 78) and cannot leave the country until the application is dealt with. Her claim need not therefore be pursued. In addition, the defendant agreed to consider H's application for a certificate of approval of his desire to marry which had been lodged in July 2006. I suggested that in the circumstances it would be sensible to consider his application, which had been outstanding since February 2002, that he should be allowed to remain on human rights grounds at the same time so that his case could finally be disposed of. Mr Jay was unable to agree to this since he had no instructions on it. It does seem to me that it will be necessary for the purpose of the certificate of approval to consider the claimant's character and history and so the file on him will be before the decision maker. This being so, it would surely be sensible to consider and deal with all outstanding claims. However, in the meantime his claim in relation to the human rights application remains for decision by me.

I can deal with the claims by SI and ZW shortly. Each has applied to extend his discretionary leave. Each made his application while his existing leave was current and so, by virtue of s.3C(2) of the Immigration Act 1971, the leaves are extended while the defendant considers the applications. The only possible difference is that leave extended by s.3(C) lapses if the applicant leaves the country (s.3C(3)) whereas, if there is a current leave which has been granted for more than 6 months and which is not conferred by a visit visa, a return should be permitted during the currency of the leave provided that the circumstances have not changed and the person concerned has not remained outside the United Kingdom for more than 2 years: see Paragraph 20 of the Immigration Rules and s.3(4) of the Immigration Act 1971. Neither claimant is entitled to or has applied for indefinite leave to remain. They will have to have been here in receipt of discretionary leave for a minimum of 6 years before indefinite leave can be considered. In neither case has that period elapsed. The only other difficulty, which particularly affected ZW who wanted to work as a private hire driver and needed a confirmation from the Home Office of his right to be in the United Kingdom and to work, was the absence of a confirmation from the Home Office of his status. That has now been given by letter of 5 March 2007. It undoubtedly should have been given when applied for. However, in the circumstances Mr Tear was unable to argue that there was any real detriment to either of these claimants in the delay in considering their applications and it seemed to me that their claims had become academic. Accordingly, I shall dismiss both of them. I would only draw attention to my observations in the final paragraph of this judgment.

The delays, which in three cases exceed 3 years and in the others (save one) have reached 2 years, are on their face excessive. Mr Gill, Q.C submits and Mr Jay accepts that there is an implicit obligation on the defendant to decide the applications within a reasonable time. Mr Gill and Ms Beach suggested that this meant that they must be dealt with speedily. That approach was no doubt put forward because it has given rise to authorities both in Strasbourg and here that a short period of time within which action must be taken is required and, more importantly, that lack of resources cannot be a relevant factor to excuse any delay. Those authorities are concerned with detention and the requirement of Article 5(4) that there be a speedy review before an independent Tribunal of any detention. It is obvious why particular speed is required in such circumstances; it is equally obvious that such a requirement is not applicable in cases such as these.

Nevertheless, there must be a recognition that there is an obligation to give proper effect to Convention rights. In Saad & Others v Secretary of State for the Home Department [2001] EWCA Civ. 2008 at paragraph 11 Lord Phillips, M.R. said:-

"… it is convenient to refer to refugees in respect of whom Contracting States have duties under the Convention as having Convention rights. Public International Law requires the signatories to the Convention must implement it in a manner which is reasonably efficacious. There is no doubt that this country is under an obligation under international law to enable those who are in truth refugees to exercise their Convention rights."

This must mean that it is incumbent on the defendant to ensure that one who claims to be a refugee must have his claim dealt with within a reasonable time so that, if it is established, his Convention rights can be exercised. This was recognised by the Court of Appeal in Secretary of State for the Home Department v S [2007] EWCA Civ. 346, judgment in which was handed down on 19 June 2007. Since Mr Jay and Mr Gill were counsel in that case and it was an appeal from a decision of mine, we were able to consider it in detail notwithstanding it was decided so recently. I shall have to consider it further in due course, but on the need for decisions to be made within a reasonable time, Carnwath LJ, who gave the lead judgment, said this in paragraph 51:-

"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 ….. 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 … in resolving such competing demands, fairness and consistency are also vital considerations."

The point being made is that what is reasonable will depend on the circumstances. It is not possible for the court to say that a particular period of time should be the limit of what is reasonable. In MM v Secretary of State for the Home Department [2005] UKIAT 00763, the Asylum and Immigration Tribunal was faced with a not particularly unusual case where a claimant who had fled Kosovo in 1998 had not had his asylum claim dealt with until 2005. At paragraph 7, the Tribunal through Mr Freeman said:-

"The reasonable time-limits for a decision on an asylum claim has been taken in a number of cases by the Tribunal as 12 months."

The appeal related to an initial claim to asylum but, even so, I do not think that 12 months should be regarded as any sort of bench mark. No doubt, delays of 12 months or more in dealing with an initial claim to asylum may well need an explanation, but, provided the approach of the defendant was based on a policy which was fair and applied consistently, such delays could not be regarded as unlawful.

The court in S was satisfied that the PSA led the Home Office to sacrifice fairness and consistency in order to meet the targets. Thus there was a deliberate and unlawful decision to postpone backlog cases (in which was included S's case) dictated solely by the requirements of the PSA. Carnwath LJ regarded this as an unlawful fettering of discretion in that individual cases were not dealt with on their merits. Moore-Bick LJ categorised it as an abuse of power resulting from conspicuous unfairness. The label is I think immaterial. 'Abuse of power' was described by Laws LJ in R v Secretary of State for Education & Employment ex p Begbre [2000] 1 W.L.R. 1115 as a unifying principle underlying other well-recognised grounds for regarding administrative acts as unlawful.

But fairness can also provide a touchstone since action based on an unfair system is likely to be regarded as irrational. As Dunn LJ said in R v Secretary of State for the Home Department ex p Khan [1984] 1 W.L.R. 1337 at 1352D: "… an unfair action can seldom be a reasonable one". I am not sure that unfairness has to be regarded as meriting the adjective conspicuous so that it can be said that there has been an abuse of power before a decision can be regarded as unlawful. That would seem to me, at least in some circumstances, to deny relief which, because of the unfairness of a particular decision, was justified. Carnwath LJ (see paragraph 52) was not apparently persuaded that it was necessary to decide that there had been an abuse of power since, as he put it, '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'. Thus the action could be categorised as one which failed to have regard to the need to treat S fairly and consistently and so was irrational. No doubt it could be (and was) regarded as conspicuously unfair so that it amounted to an abuse of power, but for my part I do not think it was necessary to go further than to show that it was unfair and that there was no reasonable excuse for that unfairness to render it irrational and so unlawful. I am not saying that the production of a result which may be regarded as unfair will ipso facto render the decision unlawful. Certainly it will raise the question of its lawfulness, but it is only if the decision resulted from an unfair decision making process that it will be regarded as irrational. If a result which appears unfair to an individual is produced, unlawfulness may be established, but not necessarily since there may be a good reason for what led to the apparently unfair result.

The need to deal with so many incomplete claims has arisen as a result of the past incompetence and failures by the Home Office. Concentration on trying to meet the targets for deciding on initial claims has meant that the further necessary action to complete, usually by removal, has not occurred. However past failures do not mean that any delay in dealing with those outstanding claims must be unlawful. The system devised to deal with the situation must recognise that there will be delays which are thoroughly undesirable. It must also be appreciated that there is a continuing detriment in that individuals whose allegedly fresh claims have not been dealt with are in the limbo referred to in the 1998 White Paper. If they are genuine refugees, they are entitled to the rights conferred by the Convention and, if they are not, their position should be known within a reasonable time. It is also important that the system caters for the possibility of advancing consideration of applications if exceptional or compassionate circumstances are shown. The question is whether the manner in which the backlog is being dealt with is in all the circumstances reasonable and fair overall. It is not for the court to require greater resources to be put into the exercise, no doubt to the detriment of other matters which must be funded by the government, unless persuaded that the delays are so excessive as to be unreasonable and so unlawful.

Mr Jay submitted that the situation in these cases differed fundamentally from that in S since there was no detriment occasioned. In S, the delay had denied the claimant the grant of ILR which would, had his initial claim been dealt with within a reasonable time and not unfairly put into the backlog, have been made. In reality, as it seems to me, the unlawful approach had led to the delay and it was the delay which in its turn has caused the loss of ILR. Thus the delay was unlawful. If the system in these cases was responsible for an unlawful delay, the claimants are entitled to redress and at least to a declaration that their claims must be considered forthwith. As I have said, detriment has resulted from the delay.

It is submitted on behalf of the claimants that the system of dealing with the backlog is unfair and so unlawful. The delays are excessive. My attention is drawn to the requirement that applicants act in a speedy fashion in making their applications and in lodging any appeal. The Home Affairs Committee of the House of Commons in July 2006 identified delay as the cause of the vast majority of complaints. It concluded that the Home Office must address this problem. The new system attempts to do that and I am told that, albeit there remains a concentration on initial decisions, they now will be pursued to completion. Additional resources are also being injected into dealing with the backlog of incomplete cases.

Mr Gill argued that what was at stake here was the right to refugee status if the necessary proof of a well founded fear of persecution for a Convention reason was established. There was a similar right under Article 3 of the European Convention on Human Rights if the persecution crossed the threshold. He relied on the approach of the Court of Appeal in R v Secretary of State for the Home Department ex p Phansopkar [1976] 1 Q.B. 606. The appellant was, she asserted, married to a husband who had the right of abode in the United Kingdom and so was entitled to enter to join him. She needed an entry clearance to do so. She had to join the queue in India which meant a delay of well over 14 months since the queue included all who sought an entry clearance for whatever reason. She therefore arrived in the United Kingdom without an entry clearance and challenged the Home Office's decision that she must return to India and join the queue there. The court made the point that she was asserting a right to enter, once she established that she was married, and was not merely seeking a discretionary leave. That meant that it was unfair and unlawful to require her to join the same queue as everyone else and so to produce an unacceptable delay. Scarman LJ referred to Magna Carta and to Article 8 of the European Convention on Human Rights – there being a clear interference with family life. But the ratio of that case is based on the unlawfulness in failing to have regard to the fact that wives were entitled to enter if they proved they were married and so not giving such wives a priority over those in the queue who were merely seeking permission to enter. As Lord Denning said, there should have been two queues.

It is to be noted that those claimants whose initial claims have been refused and whose appeals have been dismissed are seeking to persuade the defendant that they are making a fresh claim. They have that hurdle to surmount before any consideration is to be given as to whether they are indeed refugees. That puts them into a different position from initial applicants and Mr Gill was constrained to accept that it would not be irrational to treat them differently and to prioritise initial claims. Any judge sitting in the Administrative Court cannot fail to be aware that many allegedly fresh claims are brought when removal is at last attempted and that the majority of such claims are unarguable, being attempts to delay a justifiable removal. But some, albeit a small minority, are genuine. Nevertheless, the number of largely unmeritorious claims places a burden on the Home Office since each has to be considered on its merits and a decision made whether it should be regarded as a fresh claim and, if so, whether it should be rejected or allowed. Having regard to the numbers, some delay is unsurprising. Furthermore, cases in which claims have succeeded because of delay have on the whole involved delay in deciding initial claims. While nothing I say should be construed as approval of the delays in the present cases, I am not prepared to find that they are (with the possible exception of that in H's case with which I shall deal specifically) so excessive as to be for that reason alone unlawful.

The claimants have submitted that the new system is itself unfair and so unlawful, applying the approach of the Court of Appeal in S. It is suggested that petty criminals may achieve priority because the fact of a conviction may require the file to be considered. It is further said that individuals may be encouraged to commit petty crimes to achieve priority. That is not in my view a reasonable possibility. And I am told by Mr Jay, and I would in any event have expected, that only offending which apparently could mean that an individual posed a danger to the public would be followed up. Cases which are likely to result in a favourable decision are, I would have thought, less easily identifiable, since the priorities have to be established without looking into the file. But I see no reason to castigate the priorities decided on as unreasonable. I do, however, have concerns that the delay that has already occurred should be considered. The longer a claim has been outstanding the more important it is that it should be dealt with.

This concern applies particularly in H's case. His human rights claim has not been determined and has been outstanding for some 5 years. In the circumstances, that claim is more akin to an initial claim. Thus, whether or not the system should cater expressly for the length of any delay, he falls into what may properly be regarded as an exceptional case. Thus I am persuaded that immediate consideration in his case should include not only his marriage approval application but his human rights claim too.

It might be possible to devise a system which may seem better. But that does not mean that the existing one is unlawful, notwithstanding the unsatisfactory and undesirable delays. In all the circumstances, I am not persuaded that there has been unlawfulness, whether the high threshold of abuse of power or the lower one of unfairness has to be overcome. Accordingly, with the exception of H, I must dismiss those claims. In A and K "rolled-up" hearings were directed. I propose therefore to grant permission, to dispense with all further procedural steps, but to dismiss the claims.

I would only add a footnote. Since a substantial delay is, at least for the next 5 years or so, likely to occur in dealing with cases such as these, steps should be taken to try to ensure that so far as possible claimants do not suffer because of that delay. They should be informed when receipt of an application is acknowledged, as it must be, that there will likely to be a wait which could be for x months (or years). Thus they should be asked not to pursue the Home Office unless circumstances have arisen which make a communication necessary, for example, a new development or a need which has arisen for some sort of discretionary action. One serious and matter of complaint has been the continual failure of the Home Office to respond to or even acknowledge receipt of correspondence. Measures should be taken to minimise any prejudice to applicants occasioned by the delay. Thus those who were being given support should continue to receive it, those who were able to work should continue to be permitted to do so and there should be favourable consideration of desires to travel outside the United Kingdom for short periods (as, for example, in a case such as FH) without affecting the validity of the application. Applicants should not suffer any more than is inevitable because of delays which are not in accordance with good administration even if not unlawful.

It follows from this judgment that claims such as these based on delay are unlikely, save in very exceptional circumstances, to succeed and are likely to be regarded as unarguable. It is only if the delay is so excessive as to be regarded as manifestly unreasonable and to fall outside any proper application of the policy or if the claimant is suffering some particular detriment which the Home Office has failed to alleviate that a claim might be entertained by the court.