HG & Ors v Secretary of State for the Home Department

There are before me six applications for judicial review. They have been chosen as lead cases in order to resolve issues arising in a larger number of claims. The main issue is common to all six and to the other cases in the group; but there are case-specific issues in some of them which, though they share a family resemblance, require separate consideration. I will deal with the common issue first.

The Claimants are from Afghanistan. They came to this country on various dates in the course of 2000 and claimed asylum. In each case asylum was refused after a substantial delay: the earliest that a decision was made in any of the cases was 10^th July 2002 and the latest was 21^st July 2004. (I note in passing that the fact that the applications were refused does not mean that they were necessarily initially unmeritorious: in the intervening period the Taliban regime had been ousted.) None of them has, however, been removed from the country.

In the case of each of the Claimants, under the policies relating to Afghan asylum-seekers which were in force until 18^th April 2002 they could, if their applications for asylum had been considered promptly have expected (subject to any unusual features of their cases) to be granted, at the lesst, four years’ exceptional leave to remain (“ELR”), which would in practice have meant that they would have received indefinite leave to remain (“ILR”) at the end of that period. Although the facts of their individual cases have yet to be considered, it is accepted that the reason why most asylum-seekers in their position did not have their claims considered before those policies changed was that in early 2001 the Secretary of State decided to put all outstanding asylum claims on the back burner in order to concentrate resources on meeting targets for dealing with new asylum claims agreed under a Public Service Agreement entered into in January 2001: I will call this “the PSA policy”.

In R (S) v Secretary of State for the Home Department [2007] Imm A.R. 781 ([2007] EWCA Civ 546), which was decided on 19^th June 2007, the Court of Appeal held that an Afghan asylum-seeker in the same position as the Claimants whose application for ILR had been refused had been unlawfully treated. The effect of its judgment (though, as will appear, not its form) was that he was entitled to be given ILR. In summary, the Court held that the PSA policy had been arbitrary and unfair, to the extent of being unlawful, in its effect on asylum-seekers whose claims were pending and that in exercising his discretion subsequently as to whether to grant ILR the Secretary of State was obliged to take into account the need to put right the consequences of that earlier unlawfulness.

The Secretary of State has accepted the decision in S, and she accepts that the consequence is that all asylum-seekers similarly affected by the PSA policy should be entitled to ILR, subject only to consideration of

whether the opportunity to benefit from the policies under which they could have expected to receive ILR or ELR had been lost as a result of the individual’s own actions (e.g. where the delay had been caused by his failure to cooperate with the asylum process) and

whether they pass the character and background checks which are applied to all applicants for ILR.

Each of the Claimants has submitted representations to the Secretary of State via their solicitors (in each case the firm of Malik & Malik) seeking ILR on the basis of the decision in S (though some already had outstanding representations based on the same point and/or on other grounds). None of those representations has yet been considered by the Secretary of State. It follows from the Secretary of State’s acceptance of the decision in S that each of the Claimants will, when those representations do in due course come to be considered, be granted ILR unless they fall at one of the two hurdles identified above. Ms. Greaney, who appeared before me for the Secretary of State, accepted that the proportion of applicants in the Claimants’ position who would be refused on one or other of those grounds was likely to be small, though not negligible; but it is impossible to say what the position would be in any of the Claimants’ particular cases until they had been considered.

What gives rise to these applications is the delay in considering the “post-S” representations. Well over a year has now passed since the decision of the Court of Appeal and, as I have said, none of the Claimants has had his application for ILR considered. Nor is there any firm indication as to when they will be considered, save that (as I shall set out in more detail below) the Secretary of State hopes and expects to have dealt with them by March 2010 at latest. It is important to appreciate that the situation of failed asylum-seekers who remain in this country after their applications have been refused is, to say the least, unenviable. They are not allowed to work. If they nevertheless take work, they will be doing so illegally and will be liable to exploitation and deprived of the benefits of the employment protection legislation. They are not entitled to statutory benefits, save that they may if destitute apply for the limited support available under the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005. Their entitlement to NHS treatment is ambiguous but at best limited. If they wish to leave the country temporarily - for example to see family members from whom they will now have been parted for many years – they are liable to lose their entitlement to have their outstanding claims considered. They are, to borrow a phrase from the 1998 White Paper on asylum entitled Fairer, Faster and Firmer, in “a cruel limbo of worry and uncertainty for the future”. The delay since the decision in S is of course only the culmination of a much longer period of delay: all the Claimants have now been here for at least seven years. If the position were simply that they had been refused asylum and had chosen to remain in the country without leave, that situation could be said to be of their own making. But the position in their cases is that it is accepted that, but for the effect of the Secretary of State’s past unlawful policy, they would very likely have received leave to remain many years ago and that they are very likely to be granted ILR when their cases are eventually considered: that puts matters in a very different light.

However, the delay from which the Claimants are suffering is an aspect of a much larger problem. For reasons which are now well-known and into which I need not go, from the early 1990s a huge backlog of unresolved asylum cases was allowed to develop, and that was indeed exacerbated by the effects of the PSA policy. The Claimants’ cases have not been dealt with because they form part of that backlog. In July 2006, in response to pressure in Parliament and elsewhere to grapple with the problem, the Secretary of State announced a new strategy for dealing with the problem of what were described as the “legacy” cases (estimated at that date as numbering between 400,000 and 450,000). The principal elements in that strategy can be described as follows:

A new “Case Resolution Directorate” (“CRD”) within the UK Border Agency (previously the Border & Immigration Agency) (“the Agency”) has been established to deal specifically with the legacy cases. Its objective is to clear the backlog entirely within a period of five years – that is, by mid-2011. It took some time to set the Directorate up and get the necessary systems in place but it has been fully operational from late 2007.

The CRD is required to identify as a priority cases falling into four specified categories namely:

It is recognised that there may be a need to take “truly exceptional or compassionate cases” out of order: in particular, that might be appropriate where cases have been “seriously mishandled” or where there are “compelling compassionate circumstances”. Guidance as to the operation of this exception has now been developed and published.

The Secretary of State has said that cases covered by the decision in S – to which I will refer as “S-type” cases – will be treated as cases where leave to remain is likely to be granted and thus as falling into priority category (iii). These are not only Afghan cases. Similar ILR/ELR policies were in place also for asylum-seekers from Angola, Burundi, Iraq, Liberia, Rwanda, Sierra Leone and Somalia. The S-type cases are not the only cases in category (iii). As explained in a full and helpful witness statement from Emily Miles, the Director of CRD (amplifying her evidence before Collins J in the FH case referred to below), there are in principle a number of situations that might lead to applications for ILR being likely to succeed, but the main other types as identified to me were:

so-called “Rashid cases” – see R (Rashid) v. Secretary of State for the Home Department [2005] Imm. A.R. 608 ([2005] EWCA Civ 744) – being another category of cases in which an unlawful practice on the part of the Secretary of State led to asylum-seekers, in this case from Iraq, being unfairly deprived of the opportunity to obtain leave;

cases where the applicant appears to satisfy the long residence requirements under paras. 276A-D of the Immigration Rules;

some cases where families are entitled to the benefit of the “seven-year child concession” or have otherwise over a long period established a family life in the UK such that removal would be contrary to art. 8 or otherwise inappropriate.

The numbers in the various priority categories cannot yet be estimated with any accuracy: the very process of identifying priority cases, let alone dealing with them, is time-consuming and is not yet complete. But very broadly speaking the priority categories taken together are thought to represent some half of the backlog: that is why it will take so long to deal with them all. (It should be noted, however, that the figure of 400,000-450,000 quoted in 2006 is thought now to be substantially over-estimated: early work has shown a high proportion of files to be duplicated or otherwise erroneously included in the total.) So far as category (iii) is concerned, the S-type cases and the Rashid cases are both thought to number “many thousands”; and the two groups together constitute the majority of the cases in this category (that is, they outnumber the cases identified as (b) and (c) in para. 9 above).

The strategy announced in 2006 was regarded as unacceptable by many failed asylum-seekers whose claims did not fall within any of the priority categories. On 20^th June 2007 Collins J. heard applications for judicial review brought by a group of such claimants. Evidence was put before him in the form of a witness statement from Ms. Miles explaining the new strategy. He gave judgment on 5^th July 2007 dismissing the claims – R (FH) v Secretary of State for the Home Department [2007] EWHC 1571 (Admin). He was not persuaded that, given the difficult situation in which the Secretary of State found herself, her policy could be said to be irrational. He recognised, however, the very difficult situation of the claimants, facing as they did a further long period of uncertainty, and at para. 29 of his judgment he said this:

It should be emphasised that the claimants in FH were not in any priority category. Collins J. did not therefore have to consider the position of applicants for ILR benefiting from the judgment in S. However, there was before him some discussion of S, which had been decided only the previous day (though, as Collins J. noted, he and the parties were very familiar with the issues, since he had decided S at first instance and counsel before him had argued it in the Court of Appeal). At para. 22 of the judgment Collins J. said this:

In summary, therefore, the Claimants are applicants for ILR who the Secretary of State recognises are likely – but not certain - in due course to be given leave to remain, but whose cases have not yet been considered and may not be for another year or more. The decisions in both S and FH are an important part of the background to their claims but they do not directly cover them.

It is the Claimants’ case that the state of affairs described above is so unfair to them as to be unlawful. It has been held in S that asylum-seekers in their position have been unlawfully prejudiced by the effect of the Secretary of State’s earlier PSA policy. The Court of Appeal held that it was incumbent on the Secretary of State to exercise her discretion whether to grant ILR in a manner which would remedy that injustice, i.e. – subject to the points identified in para. 5 above - by granting them ILR. Miss Jones, for the Claimants, submitted that it follows from that reasoning that the Secretary of State was obliged to afford that remedy forthwith. The position of the “S–type” applicants was different from that of failed asylum-seekers in the other priority groups, and - more particularly - from that of other applicants for ILR in category (iii). No doubt all had suffered delay; but in the case of the Claimants and others in their position the delay had already caused them a specific injustice, which it was the Secretary of State’s duty immediately to remedy. On that basis the “priority” which the Claimants were being accorded under the present policy was inadequate: they had already suffered a year’s delay since the decision in S, on top of the prior unlawful delay, and the prospect of having to wait for a further year or more was unacceptable. They should accordingly now be granted “super-priority” (my phrase, not Miss Jones’s). Specifically, Miss Jones submitted that I should direct that each of their cases now be considered, and a decision reached, within a period of no more than three months. She submitted that there was every reason to believe that a decision within that period would be achievable. She pointed out that the CRD had apparently resolved some 100,000 cases in its first year, which implied a rate of some 1,750 per week: thus even if the S-type cases amounted to 5,000, or something of that order, that would not be an impossible burden to discharge. It was common ground that cases of this kind are not inherently difficult to identify, because they can be recognised simply from the country of origin of the asylum-seeker and the dates of his or her application and decision when read against the dates of the various country-specific ILR/ELR policies. Miss Jones also pointed out that when the Rashid cases had first been identified a particular unit within the Agency had been set up to deal with them (though that has now been subsumed into the CRD): something similar could be done for these cases.

In addition to that central submission, Miss Jones had three supporting points:

She referred to the observation in para. 22 of the judgment of Collins J in FH, which I have set out at para. 12 above, that S-type applicants for ILR were entitled to have their claims heard “forthwith”. She acknowledged that the remark was obiter; but she drew support from the fact that not only Collins J. but apparently counsel for the Secretary of State appeared to recognise that S-type cases would require special treatment.

It is the Secretary of State’s case that the decision in S does no more than require her to reconsider the cases of applicants in the Claimants’ position with a view to the grant of ILR. No doubt, given the history, she should also do so as soon as she fairly can; but there is nothing in the reasoning of the Court of Appeal that requires her to do so “forthwith”. In Ms. Greaney’s submission the decision as to the degree of priority to be accorded to the S-type cases was a matter for the discretion of the Secretary of State, and her decision could only be challenged on grounds of irrationality. I was referred to the many well-known authorities in which the courts have recognised that in situations where resources are limited they should only exceptionally allow challenges to ministers’ decisions on what are often extremely difficult and delicate choices – see, e.g., R v. Cambridge Health Authority, ex p. B [1995] 1WLR 898; R (Paulo) v. Secretary of State for the Home Department [2001] Imm. A.R. 645; and indeed FH itself (see at para. 11). It was, she submitted, reasonable for the Secretary of State to take the view that, while S-type cases should enjoy priority under the new legacy arrangements, they should not be given the kind of super-priority sought by the Claimants; and that the fact that they had previously been the victims of an unlawful decision on her part (or that of her predecessors) did not entitle them as of right to such treatment.

Much as I sympathise with the Claimants’ predicament I believe that Ms. Greaney’s submission is correct.

The first point to make is that the only explicit consequence of the decision in S is that persons in the Claimants’ position are entitled to be considered for ILR: it says nothing as such about how quickly that consideration should take place. Of course, as Carnwath LJ said in S (at para. 51), albeit in the different context of an earlier period of delay:

As for the argument that the Claimants are in a fundamentally different position from other applicants because they have suffered a legal wrong, the Court of Appeal in S was careful to emphasise that the Claimant was not entitled to ILR by way of a direct legal remedy. The Court was exercised by some observations of Pill LJ in Rashid which appeared to suggest that the Court could itself declare that the claimant was entitled to ILR. As to that, Carnwath LJ said this, at para. 46 of the judgment:

Accordingly the S-type applicants have no absolute right to relief which creates a difference of kind between their cases and those of others in the backlog. The issue is thus simply whether the Secretary of State’s decision to give them priority but not super-priority (absent proof of any “truly exceptional” circumstances) is rational.

To start with, I can see no basis on which it could be said that cases in category (iii) were necessarily entitled to a higher priority than cases in the other three categories. In the case of all four categories there are strong reasons why their cases should be dealt with as soon as possible: that, after all, is why they are treated as priority categories in the first place. The reasons why that is so differ from category to category and there is no objective measure by which one kind of reason could be said to weigh more heavily than another: these are quintessentially “political” judgments. Indeed Miss Jones did not really focus her argument in that direction; and Mr. Malik Saleem of Malik & Malik accepted in a witness statement filed on the Claimants’ behalf that category (i) at least should in fact have higher priority.

Miss Jones’s principal point was that the S-type cases should have a higher priority than the other cases within category (iii). She relied on the fact that they had been the victims of a past unlawful policy. She also submitted that their situation was worse than that of the other groups in the category because of the restrictions which I have summarised in para. 7 above. But that argument largely breaks down on the facts. The Rashid cases equally have been the victims of a past unlawful policy and any “super-prioritisation” would have to be accorded to them also. As I have said, between them the S-type and Rashid cases represent the majority of the category; so that the advantage to be gained by prioritising them within the category would be comparatively limited. It is true that the others in the category – essentially groups (b) and (c) as identified in para. 9 – have not been victims of past unlawfulness; but, once it is established (see above) that this is not an absolute difference but no more than a material factor, I do not see why the Secretary of State was obliged to treat it as a factor which necessarily distinguished them from others who have had a very long wait for a decision which is likely to be made in their favour. They, like the Claimants, will equally have suffered wholly inordinate delays in considering their cases; and – contrary to Miss Jones’ submission - most of them will as failed asylum-seekers be suffering precisely the same kind of restrictions as the Claimants. There is a limit to the extent to which it is useful to create fine distinctions between people all of whom have been badly treated.

As to the particular points identified at para. 15 above:

Collins J in FH was not concerned with the issue of prioritisation and I do not think that the observation on which Miss Jones relies can be treated as being directed to the issue before me. The distinction which both he and Mr. Jay recognised between S-type and “ordinary” legacy cases is of course reflected in the prioritisation which they are already being given.

It is evident that the “serious mishandling” sub-category of “truly exceptional cases” was not designed to accommodate an entire class such as the S-type cases. As Ms. Miles observes in her witness statement, if it were treated as applying to large categories of cases this would be self-defeating and would prejudice the CRD’s ability to expedite truly urgent and exceptional cases.

The ratio of Phansopkar has no application to the circumstances of the present case. The applicant in that case had an absolute right to enter the UK, subject only to being supplied with the necessary documents. In the present cases the Claimants only have a right to be considered for ILR, and there is a real chance that they will be held not to be entitled to it.

I should add that even if I had been satisfied that the Secretary of State’s treatment of the Claimants’ cases as a group was unlawful I should have been very hesitant about granting them more than declaratory relief. Miss Jones’ calculation that it should be possible to deal with all the S-type cases within three months by giving them super-priority overlooks the fact that they could not rationally be distinguished from the Rashid cases. But in any event it is purely arithmetical. For better or for worse, the CRD strategy is in place and is fully operational. It does not take much administrative experience to appreciate that the disruption involved in moving at short notice from one established system of priorities to a wholly new one would be very great. The evidence before me does not justify the conclusion that it would be wholly impossible for the CRD to meet a target of dealing with all the S-type and Rashid cases – numbering many thousands – within, if not three months, at least a period much shorter than the current estimate; and Ms. Greaney in her submissions did not go further than to say that the difficulties involved would be “huge”. If the injustice were sufficiently great those difficulties would have to be faced. But, without in any way minimising the Claimants’ plight, I am not convinced that that is so. Despite all the problems which they face, they are not, or need not be, destitute. Their claims will be accelerated if truly exceptional circumstances are shown. There is now at last real light at the end of the tunnel. It must be appreciated that it is unlikely that most of them will in fact have to wait until March 2010: that is the estimate for completing dealing with all the priority cases, and individual cases may be reached at any time between now and then. I doubt whether it would be justifiable to impose a huge degree of disruption, which would impact not just on the CRD and its staff but more importantly on the other cases which it has to handle, in order to reduce the Claimants’ remaining waiting time by a period of months.

Even if I am to dismiss the application in so far as it depends on the common point, the question remains whether any of the individual cases fall into the “truly exceptional” category referred to at para. 8 (3) above. In one case – that of Mr. M - the Secretary of State accepts that it does. In that case the Claimant has provided evidence which has satisfied the Agency that his mother is seriously ill in Pakistan and that his case should be considered out of order so that, if ILR is granted, he can obtain the necessary travel documents to visit her and be able to return. Shortly before the hearing the Treasury Solicitor wrote to the Claimant as follows:

As to the other five cases, no argument of this character was addressed to me in the cases of Mr. G and Mr. K. I proceed to consider the cases of Mr. N, Mr. R and Mr. W. All of these depend on a particular type of alleged exceptional circumstance, namely that a close relative is seriously ill abroad. The “definition” of such cases in CRD’s published guidance reads as follows:

On 30^th August 2007 and 5^th September 2007 Malik & Malik wrote to the Immigration and Nationality Directorate chasing progress in Mr. N’s case. Both letters included brief references to a “relative” who is said to be “in need of medical treatment”: the second letter refers to the relative as “him”. On 16^th November 2007 they wrote again intimating an intention to bring proceedings for judicial review. The letter is very extensive and mostly deals with matters of law, but on the final page there appears the following short paragraph:

On 29^th April 2008 Malik & Malik wrote to the Treasury Solicitor asking that Mr. Niazi’s case be now considered as a matter of urgency. Various points were made about the background, but they relied in particular on the ill-health of his wife. They enclosed what was described as “a medical certificate” and, elsewhere, “a medical report” which were said to confirm that his wife was seriously ill in Pakistan and that he needed to travel abroad as a matter of urgency. Again, the enclosures do not include either a report or a certificate in the ordinary sense of those terms: rather, they consist of a number of pages of copy medical notes, some but not all on printed forms of the Hayatabad Medical Complex. Again, these are not at all easy to decipher, but they appear to show that Fatima Niazi was admitted to hospital at least between 10^th and 12^th April 2008 and was seen by a psychiatrist. One note says “mentally condition has been seriously affected”, and another seems to read “last one year seriously brain affected”. There is a slightly fuller note which, however, is impossible to construe in full. It appears to begin “mentally position is not good – also missing her husband and [?]”; there are then some further words which are indecipherable in detail but the gist of which may be that her condition would be helped if her husband were available to care for her. There is no indication that any physical illness has been diagnosed. The patient appears to have been prescribed some medication, but it is not clear what it is.

There was no letter from the Secretary of State or the Treasury Solicitor dealing with any of those letters until 12^th September 2008, when the Agency wrote purporting to deal with no fewer than four letter dated between 30^th August 2007 and 29^th April 2008. That delay is very regrettable, particularly in the light of Collins J’s strictures in FH (see para. 11 above). Such delay is indeed a feature of most of these six cases. The Treasury Solicitor has acknowledged that it is unacceptable and has apologised. Ms. Greaney told me that the problem was in fact a consequence of these cases being chosen as lead cases. In any event, the letter of 12^th September, so far as relevant, reads as follows:

It is clear from that letter that all the available material – which goes beyond anything that was shown to me – was thoroughly considered by the Agency; and I was not addressed on the details of the reasoning in it. While not all the points made seem to me particularly strong, there is in my view an adequate basis for the view that the Claimant had not demonstrated that his wife was so ill that it was right to consider his case out of turn so that he could travel to see her in Pakistan. There must be a limit to the extent to which it is reasonable to expect staff of the Agency to comb through the kind of fragmentary material supplied in this case in order to form some kind of judgment as to the medical condition from which the relative is said to be suffering. It may be that the true position is that the Claimant’s wife is indeed suffering from some form of serious mental illness – perhaps a severe depression - and needs the presence of her husband; and on that basis the Secretary of State might regard the case as falling within the spirit of her guidance (though it does not appear to fall within the letter). But that has simply not been established.

It was suggested that it was irrational for the Secretary of State to refuse “exceptionality” in the case of Mr. Niazi when she had allowed it in the case of Mr. M; but in the latter case the quality of the evidence, and the seriousness of the Claimant’s mother’s condition, were of a very different character. I do not under-estimate the difficulties for asylum-seekers in this country of obtaining “Western-style” medical reports about sick relatives in Pakistan or elsewhere; but unless the Agency receives material of better quality than was provided in this case I do not see how it can be criticised for not accepting that it shows the kind of medical condition that would bring the case within the current policy.

On 16^th November 2007 Malik & Malik wrote to the CRD applying for ILR in the light of the decision in S. The letter contained the following short paragraph:

There was no substantive response to that letter, or, in particular, to the aspect of it relating to the Claimant’s mother’s alleged illness. On 28^th April 2008 Malik & Malik wrote to the Treasury Solicitor asking for priority to be given to the Claimant’s application for ILR for two reasons. One was that he was destitute. The other was as follows:

It was not until 8^th September 2008 that the Agency replied to Malik & Malik’s letter of 23^rd November 2007; and a letter was sent the following day replying to the letter of 28^th April 2008. In both cases the delay is deplorable; but the explanation is the same as that to which I have already referred at para. 29 above. Both letters acknowledged the Secretary of State’s power to consider cases out of order where they are “truly exceptional” but conclude that the Claimant’s case does not fall into that category. The letter of 8^th September says this:

I have no difficulty in holding that the Secretary of State was fully entitled to regard the medical evidence on which the Claimant relies as inadequate, essentially for the reasons given in the letter of 8^th September. I will add that the remarkable similarity in wording between the certificates produced by the two hospitals was calculated to reinforce the doubts expressed as to the authenticity of both certificates.

On 4^th October 2007 Malik & Malik wrote to the Immigration and Nationality Directorate asking for Mr. W’s case to be reconsidered in the light of the decision in S. The penultimate paragraph of the letter reads as follows:

There does not appear to have been a reply to the letter of 4^th October, but the Agency addressed the letter of 9^th December by a letter dated 6^th February 2008. So far as relevant, it said this:

On 25^th April 2008 Malik & Malik wrote to the Administrative Court Office in the following terms:

The Treasury Solicitor replied on 2^nd May 2008 pointing out that neither the form N463 nor Dr. Habib’s letter had been enclosed: it asked for them to be sent. The letter also observed, somewhat tartly:

On 6^th May 2008 Malik & Malik replied purporting to enclose the missing materials. The Treasury Solicitor replied pointing out that they had sent the wrong enclosure. They have heard nothing since. The Secretary of State has not therefore had the opportunity to consider Dr. Habib’s second letter.

I do not, for the reasons given, believe that the Secretary of State’s decision not to treat these three cases as “truly exceptional” can be said to have been irrational or unlawful.

One question which strikes anyone considering the individual cases reviewed above is whether it is really necessary for the Secretary of State to insist that the only way of accommodating applicants for ILR in the Claimants’ position who want to travel abroad, to see a sick relative or for any other good reason, is to have their substantive applications considered out of turn. If that is indeed necessary, one can see why it should only be done in “truly exceptional” cases; but why can such applicants not simply be allowed to leave the country temporarily on the basis that this will not prejudice their applications ? Even if there are good reasons for a general rule that leaving the country is incompatible with the maintenance of a claim to ILR, the special circumstances of applicants caught in the present backlog might be thought to justify a more relaxed approach. Precisely this point was made by Collins J at para. 29 of his judgment in FH: see para. 11 above.

The Secretary of State evidently expected that the Claimants would raise this issue before me, and it is addressed in the Acknowledgment of Service and the witness statement of Ms. Miles: the gist was that the option adumbrated above, attractive as it may seem, is not in fact possible for a variety of reasons, some legal and some practical. In the event, however, Miss Jones did not argue the point: the individual cases addressed above were argued only on the basis that the Secretary of State was obliged to expedite consideration of the substantive application for ILR. Ms. Greaney encouraged me nevertheless to deal with the matter in my judgment and to endorse the reasons put forward by the Secretary of State. Miss Jones expressed herself neutral on whether I dealt with the issue; but she was certainly not prepared to argue it herself. Not having had the question tested by adversarial argument, I am not prepared to take the course urged on me by Ms. Greaney. I am, however, prepared to say this much. It was clear to me from Ms. Miles’ evidence and Ms. Greaney’s submissions that the question of allowing applicants for ILR to travel, in advance of any decision on their application, is much less straightforward than it may seem at first sight. Depending on the circumstances of the particular case, there may be quite formidable practical and statutory obstacles which can only be overcome – if at all – with considerable difficulty and modifications to existing practice. But I am not prepared to make a blanket finding excluding the possibility that in a particular case the Secretary of State may have to face those difficulties if she is unable or unwilling to side-step them by expediting decision of the substantive application for ILR.