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

MR JUSTICE BEATSON: This is a renewed application for permission to apply for judicial review, permission having been refused on the papers by Wyn Williams J on 10 November 2008. The claimant arrived in the United Kingdom on 8 September 1999. His claim for asylum was refused on 1 December 2003. On 27 June 2002 he had married a UK national, who had a child by a previous relationship. The couple have since had two children of their own and they are in the process of adopting a child from Jordan.

On 8 March 2005, the defendant refused to grant the claimant indefinite leave to remain within the terms of her family concession policy. The claimant's asylum and human rights appeals were dismissed on 19 July 2005 when an application for reconsideration was dismissed because it was out of time.

On 11 May 2006, over a year after the rejection of the application under the family concession policy, the claimant applied to the defendant to reconsider the matter because the defendant had not considered the position of his stepdaughter. The defendant responded in July and sought further information. There has been substantial correspondence. Miss Bishop, who appears on behalf of the claimant, sent some 16 letters in the period May 2006 to December 2007, but no decision has been made on this application.

Applications were made for the case to be expedited and were refused by the Border Immigration Agency in letters dated 30 October 2007 and 25 April 2008. These proceedings were launched on 7 August 2008. There was no challenge within a considerable time of the 2007 letter, and certainly within three months of the 2008 letter, to the decision not to expedite the claim.

The claim is now being considered as part of the legacy programme. The defendant accepts that the case falls within the legacy programme because there was a claim for asylum prior to March 2006, in respect of which the claimant has not been removed, and there is a further application, the application under the family concession policy.

Miss Bishop submits that the family policy applies to this claimant and that the defendant's position, that it only applies to those whose families are seeking asylum, or who are not entitled to be in this country as citizens or otherwise, is mistaken and erroneous in law.

I do not consider that that submission is arguable. It is clear from the policy that it applies to families seeking asylum. It is clear from, for example, the statement in the policy that indefinite leave to remain would be given to all dependants on a successful application and that the policy is aimed only at those not entitled to be here. I accept Mr Blundell's submission that what Baroness Hale said in

As far as the failure to expedite consideration of the legacy claim is concerned, I would not refuse permission on the grounds of delay. This is so, although two applications for expedition were, as I have said, rejected and relief was not sought promptly after those. Miss Bishop relies on a period of six years delay in dealing with the claimant's asylum claim, four years for the initial decision, two years for the appeal process to conclude, and three-and-a-half years since the family concession application was made. She relies on the numerous letters written on behalf of the claimant, and the heavy impact on family life and the health of the family.

During submissions there has been reference made to a recent medical report of depression and back pain. Miss Bishop relies on that as part of the picture, although she fairly did not rely on medical reasons as a reason for expedition in itself. She also placed particular emphasis on the fact that the claimant has been unable to work since his asylum claim was refused in 2003. She relies by analogy on the case of R (Tekle) v Home Secretary [2008] EWHC (Admin) where Blake J decided that the policy denying claimants the ability to seek employment was over-broad for those claimants who had to wait as long as four years for their fresh claims to be decided.

Although the renewed grounds criticise the Single Judge, I have concluded that his observation that the delays which have so far occurred, although regrettable, cannot found an arguable claim, is correct. The material delay is not since the first asylum application was made, but from the time the application to reconsider the family concession application was made. The stresses on a family whose immigration status is uncertain, and position is fragile, are manifest and clear. There is no evidence before me of considerations relating to the family's health which in itself makes theirs an exceptional circumstance, or arguably does. I note that the only category of exceptional circumstances in the indicative list which the defendant has as part of her policy, and on which Miss Bishop relied, was that the case was seriously mishandled or wrong. I do not consider that category applies here. It applies to a situation where the Border and Immigration Agency accepts that it has made an incorrect decision and needs to put it right, and an "error" case is not the same as a "mishandled" case.

Collins J in FH indicated that the category of cases which would be exceptional would be small. It is, in my judgment, not arguable that this is one of them and for that reason this renewed application is refused.

MR BLUNDELL: I am grateful for that. I think it is fair to say that my learned friend may say something in response to the question of costs. The Secretary of State did make an application for £480 in the usual manner.

MR JUSTICE BEATSON: Wyn Williams J refused that.

MR BLUNDELL: He did refuse it. I renew it here. I say no more about it.

MISS FISHER: As I indicated--

MR JUSTICE BEATSON: I am not minded to differ from Wyn Williams J. You may have your detailed assessment. Just to make it clear, I make no order as to costs in the circumstances of this case.

MR BLUNDELL: Very well, my Lord.