Taylor and Owusu-Akyeaw, R (on the application of) v Secretary of State for the Home Department

MR STEPHEN MORRIS QC: The two claimants in this case seek judicial review of the decisions of the Defendant, the Secretary of State for the Home Department dated respectively 27 September 2012 and 9 October 2012 to grant each of them limited leave to remain in United Kingdom in accordance with immigration rules in force from 9 July 2012, those rules being the rules in force at the time that those decisions were taken. The first claimant is Sherika Sharon Taylor (“the first claimant”). She is a Jamaican national now aged 27. She has a daughter now aged five who is a British citizen. She entered the UK in April 2001 on a visitor's visa and overstayed. Prior to the present application she had had previous appeals and asylum applications refused.

The second claimant is Abigail Owusu Akyeaw (“the second claimant”). She is a national of Ghana and now aged 37. She has a son now age five who is a British citizen. She claims to have entered the UK in 1996. Prior to the present application she had made an application as the dependent of an EEA national. That application was refused in January 2009.

Each claimant applied for discretionary leave to remain outside the immigration rules in pursuant to section 55 of the Borders Citizenship and Immigration Act 2008 and Article 8 of the ECHR. The first claimant applied on 30 March 2011 and the second claimant applied on the 5 March 2012. Each claimant complains that she should have been granted leave on more favourable terms in accordance with the rules in force at the earlier time when her application for leave to remain was made.

Turning to the terms of the decision letters in each case. In the case of the first claimant by a decision letter dated 9 October 2012, the first claimant was granted limited leave. The letter provided inter alia as follows:

"As a result of the changes to the immigration rules which came into effect on 9 July 2012, any family life claim will now be given consideration under Appendix FM. Consideration has been given under the exceptions paragraphs EX.1(a) and EX.1(b). We are satisfied from the information you have provided that you are the parents and main carer of a British citizen child who is resident in UK. We are also satisfied that this child enjoys contact with her father who holds separate status in the United Kingdom. Because of your particular circumstances, you have been granted leave within the immigration rules under D-LTRP.1.2 of Appendix FM. We have endorsed your passport with limited leave to remain in the United Kingdom initially for 30 months.

In order to qualify for settlement, you must have completed a continuous period of at least 120 months in the UK on with limited leave granted because of your family life as a parent of a child in the United Kingdom.….

Future Applications

If your circumstances remain the same, following a continuous period of lawful leave to remain in the UK for 10 years and subject to meeting the requirements of the immigration rules at the time, you may apply for indefinite leave to remain in the UK”.

As far as the second claimant is concerned, she received a decision letter in very similar terms dated 27 September 2012. I read only the following passage, (the first part of the letter being essentially the same as the letter of 9 October 2012).

"We have endorsed your biometric residence permit with limited leave to remain in United Kingdom initially for 30 months. In order to qualify for settlement, you must have completed a continuous period of at least 120 months in the United Kingdom on with limited leave granted because of your family life as a parent of a child in the United Kingdom"

and then the letter continues and contains the same provision about future application as contained in the letter to the first claimant.

Each application was made before the 9 July at a time when other more favourable rules were in force. The claimants claim they should have been granted leave in accordance with those rules and had they been so granted, they would have been granted discretionary leave for 36 (rather than 30 months) and would have qualified for indefinite leave to remain within 72 months (rather than 120 months).

By the time that their application was decided, the new rules were in force and so they were granted limited leave in the terms I have just described.

The Grounds of Challenge

There are two grounds of challenge. In summary the claimants contend, first, that the Secretary of State should not have applied the rules in force after 9 July 2012 to the claimants' applications but rather the rules in force before 9 July and, had she done so, as I have explained she would have granted leave on more favourable terms.

Secondly, alternatively, and in the case of first claimant alone, following the Defendant's excessive delay in processing her application, the policy granting discretionary leave was withdrawn. That delay rendered it unfair for the Defendant not to have applied the withdrawn rules to the first claimant.

The relief sought by the claim is an order quashing the decisions and for orders to be substituted granting 3 years discretionary leave to remain in line with the rules as at 8 July 2012.

I describe in more detail below the factual history in relation to the first claimant's application when I deal with the second ground for review.

As far as the procedural history is concerned, on 23 April 2014 permission was granted on the papers on the basis of the then very recent Court of Appeal decision in the case of Edgehill v Secretary of State for the Home Department [2014] EWCA Civ 402.

On 12 February this year the Court of Appeal handed down judgment in the subsequent case of Singh v Secretary of State for the Home Department [2015] EWCA Civ 74 not following Edgehill on the basis that the latter case had not considered a further change in the rules. On 4 March this year the present case was stayed to await the outcome of then pending petition for permission to appeal to the Supreme Court in the Singh case. On 31 March 2015 the claimant filed amended grounds raising the second ground of challenge which I have just described. On 12 May 2015 the Defendant filed detailed grounds of defence. Significantly on 20 May this year the Supreme Court refused permission to appeal in the Singh case.

The Rules

I turn first to the relevant immigration rules and policy. They are conveniently summarised and then set out by Lord Justice Underhill in the Singh case. Adopting Lord Justice Underhill's description, I refer to the rules before 9 July as the Old Rules and to the rules taking effect from 9 July 2012 as the New Rules. What follows is a brief summary. As for the Old Rules, the background is explained at paragraphs 2 and 6 of Lord Justice Underhill's judgment where he stated:

"As under the old Rules leave to enter or remain as a family member of a person settled in the UK was regulated by Part 8, which is entitled "Family Members." There was no recognition of a right to enter or remain on grounds of private life as such, but Part 7 ("Other Categories") did provide for leave to remain on grounds of long residence. If an applicant could not establish a right to remain on the basis of one of the particular provisions in those parts, which were tightly defined, they could seek to rely on the right to respect for private family life4 derived, via the Human Rights Act 1998, from Article 8 of the European Convention of Human Rights. Such applications were generally referred to as being made "outside the Rules….

As already noted, Part 8 covers family members. I need not refer to the details of its provisions prior to HC 194 coming into effect. Part 7 had a sub-heading "Long Residence," which comprised paragraphs 276A-276D. I need only note paragraph 276B, which set out the requirements for the grant of indefinite leave to remain on the ground of long residence in the UK. These included, at (i),that the applicant should have had either (a) ten years' continuous lawful residence or (b) fourteen years' continuous residence (i.e. residence which was not - or not all - lawful); but residence did not count towards the fourteen-year period if the applicant had been served with notice of liability to removal."

As far as material in the present case, the effect of the discretionary policy under the Old Rules was as follows:

“Standard Period for Different Categories of Discretionary Leave

It will normally be appropriate to grant the following periods of discretionary leave to those qualifying under the categories set out above. All categories will need to complete at least 6 years in total or at least 10 years in excluded cases before being eligible to apply for ILR, Article 8 cases 3 years.

Applications for Settlement

A person will normally become eligible for consideration for settlement after completing six continuous years of discretionary leave."

On 9 July 2012 the Defendant brought in new rules pursuant to Statement of Changes HC 194 (June 2012). Those rules included Appendix FM and paragraph 276ADE which provide criteria to assess claims based on family life and private life pursuant to Article 8.

Appendix FM paragraphs EX.1(a) and EX.1(b) makes specific provision where the applicant has a parental relationship with a British child or a subsisting relationship with a partner who is a British citizen. These provisions are set out in detail in paragraph 11 of Lord Justice Underhill's judgment in Singh:

"11. I need not summarise the substantive provisions of Appendix FM, save to note that various of the specific requirements for the grant of leave to enter do not apply where paragraph EX.1 applies. That paragraph reads:

"This paragraph applies if

(a) (i) the applicant has a genuine and subsisting parental relationship with a child who -

(aa) is under the age of 18 years;

(bb) is in the UK.

(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application;

And

(ii) it would not be reasonable to expect the child to leave the UK; or

(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK."

As to how much leave is given in those cases, paragraph D-LTRPT.1.2 of Appendix FM under the changed rules provides as follows:

"If the applicant meets the requirements in paragraph LTRPT.1.1.(a)(b) and (d) for limited leave to remain as a parent, they will be granted leave to remain for a period not exceeding 30 months and will be eligible to apply for settlement after a continuous period of at least 120 months with such leave with limited leave as a parent under paragraph D-LRPT.1.1 or in the UK with entry clearance as a parent under DECPT.1.1."

Statements of changes HC 194 also included the following transitional provision (described by Lord Justice Underhill in paragraph 7 of his judgment as the implementation provision). That paragraphs reads as follows:

"Implementation.

However, if an application for entry clearance leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012."

As held in Singh, this provision has the effect of overriding what is known as the Odelola principle. That principle is that changes in immigration rules apply not only to applications for leave made on or after the date they take effect, but also to any application pending as at that date; see Singh paragraphs 32 to 34. On that basis it was held in Edgehill that the effect of HC 194 was that an application made before 9 July 2012 fell to be decided under the Old Rules.

There was, however, a further amendment, Statement of Changes HC 565 which came into effect on 6 September 2012. This is described in paragraph 44 of the judgment of Lord Justice Underhill where he stated:

"44 It is Mr Blundell's case that, even if, as I would hold, the position under HC 194 was that the New Rules did not apply to pending applications, that ceased to be the case from 6 September 2012 by reason of changes made by paragraph 75 of HC 565. That paragraph inserts into Part 8 three new paragraphs. A277A-A277C, to follow immediately after paragraph A277. Paragraph A277A is irrelevant for our purposes. Paragraph A277B and A277C read as follows:

"A277B. Where the Secretary of State is considering an application for indefinite leave to remain to which Part 8 of these rules continues to apply (excluding an application from a family member of a Relevant Points Based System Migrant) and where the application does not meet the requirements of Part 8 for indefinite leave to remain or limited leave to remain:

(a) the application will also be considered under paragraphs R-LTRP.1.1.(a),(b), and (d), R-LTRPT.1.1.(a), (b) and (d) and EX.1. of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of these rules;

(b) if the applicant meets the requirements for leave under those paragraphs of Appendix FM or paragraphs 276ADE to 276DH (except the requirement for a valid application under that route), the applicant will be granted leave under those provisions; and.

(c) if the applicant is granted leave under those provisions, the period of the applicant's continuous leave under Part 8 at the date of application will be counted towards the period of continuous leave which must be completed before the applicant can apply for indefinite leave to remain under those provisions.

A277C. Subject to paragraphs A277 to A280 and paragraph GEN.1.9 of Appendix FM of these rules, where the Secretary of State is considering any application to which the provisions of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of these rules do not already apply, she will also do so in line with those provisions and the applicant."

The key elements of HC565 are first, the terms of new paragraph A277C in Part 8 introduced by HC 565 and second, the further observation of Lord Justice Underhill at paragraph 44 that:

"HC 565 has no equivalent implementation provision with the effect that from 6 September the Odelola principle applies as regards application pending at the date of HC 565 implementation."

Thus, in relation to any decision taken after 6 September 2012, including applications made prior to 9 July 2012, the Defendant can apply the rules in force after 9 July 2012.

The claimants have also drawn to my attention the provisions of HC 760 which further amended paragraph A277C. This is set out at paragraph 52 of the judgment in Singh:

"… Paragraphs 226-277 of HC 760, which was promulgated on 22 November 2012 and took effect from 13 December, amended paragraph A277C so that it read:

"Subject to paragraphs A277 to A280 and paragraph GEN.1.9 of Appendix FM of these rules, where the Secretary of State deems it appropriate, the Secretary of State will consider any application to which the provision of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of these rules do not already apply, under paragraphs R-LTRP.1.1(a),(b) and (d), R-LTRPT.1.1.(a),(b) and (d) and EX.1 of Appendix FM (family life) and paragraph 276ADE (private life) of these rules. If the applicant meets the requirements for leave under those provisions (expect the requirement for a valid application), the applicant will be granted leave under paragraph D-LTRP.1.2 or D-LTRPT.1.2 of Appendix FM or under paragraph 276BE these rules."

It is common ground that this amended version of paragraph A277C has no direct application to the present case because, as in the case of Mr Singh, the relevant decisions here were taken before HC 760 was promulgated on 22 November 2012. The claimants were sought to suggest that nevertheless HC 760 cast some light on HC 565.

I now turn to deal with each of the two grounds.

Ground 1. Do the new or Old Rules apply to the claimants applications for leave to remain?

The case law on the effect of the changes in the rules with effect from 9 July is as follows: First in the Edgehill case which I have cited, the Court of Appeal held that the effect of the implementation provision in HC 194 was to displace the Odelola principle and thus an application made before 9 July had to be decided under the Old Rules. This is explained in Singh at paragraph 34 to 36. Secondly in Haleemudeen V Secretary of State for the Home Department [2014] EWCA Civ 558 on 2 May 2014 the Court of Appeal held that an application for indefinite leave to remain made in February 2012 but decided on 1 October 2012 fell to be decided under the new rules. Edgehill was not cited in the Court of Appeal in Haleemudeen. Haleemudeen is explained in paragraph 37 to 39 of Singh.

Then in Singh itself Lord Justice Underhill concluded that the decisions in Edgehill and Haleemudeen were inconsistent; see paragraph 40 of Lord Justice Underhill's judgment. He went on to say that First, the Court of Appeal was bound by Edgehill because the later case was per incuriam and secondly, in any event he preferred the reasoning in Edgehill; see paragraph 41 of Singh.

Lord Justice Underhill then went on to address the effect of the further change made by HC 565 (as set out above). At paragraph 49 he accepted that HC 565 cannot have any effect as regards decisions made between 9 July and 6 September 2012. After then setting out the claimant's submissions as to why HC 565 and in particular paragraph A277C should not affect the implementation provision in HC 194, Lord Justice Underhill concluded as follows:

"56 The foregoing analysis has regrettably been somewhat dense, but I can summarise my conclusion, and the reasons for it as follows:

(1) When HC 194 first came into force on 9 July 2012, the Secretary of State was not entitled to take into account the provision of the New Rules (either directly or by treating them as a statement of her current policy) when making decisions on private or family life applications made prior to that date but not yet decided. That is because, as decided in Edgehill, "the implementation provision" set out at para 7 above displaces the usual Odelola principle.

(2) But that provision was altered by HC 565 - specifically by the introduction of the new paragraph A277C with effect from 6 September 2012. As from that date the Secretary of State was entitled to take into account the provisions of Appendix FM and paragraphs 276ADE-276DH in deciding private or family life applications even if they were made prior to the 9 July 2012. The result is that the law as it was held to be in Edgehill only obtained as regards decisions taken in the two-month window between 9 July and 6 September 2012.

(3) Neither of the decisions with which we are concerned in this case fell within that window. Accordingly the Secretary of State was entitled to apply the New Rules in reaching those decisions."

In summary Lord Justice Underhill held that where a decision is taken after 6 September 2012 on application made before 9 July, the Secretary of State applies and is right to apply the New Rules. On the facts, Singh was a post September 6 2012 case as are the present cases. I was also referred to two other cases R (on the application of Rajibul Islam) v Secretary of State for the Home Department [2015]EWCA Civ 312 decided on 27 March 2015. At paragraph 23 Lord Justice Aikens held that the Court of Appeal was bound by Singh and at paragraph 28 Lord Justice Underhill reiterated the conclusion that Edgehill does not survive the implementation of HC 565 and that the decision failed to be decided under the New Rules.

Finally, the claimants referred to the decision of the Court of Appeal 25 June 2015 granting permission to appeal in case of Thomas v Secretary of State for the Home Department 2015 EWCA Civ 856, there the defendants was granted 30 months discretionary leave taking account of the new rules. The claimant apply for judicial review of that decision arguing that she should have been granted 36 months. On judicial review the Upper Tribunal found against him. The claimant appealed on the ground that the Secretary of State was not entitled to have regard to the new rules. Permission on that case was refused on paper on 5 December 2014 before the Singh decision but then after and at an oral hearing after the Singh decision and in March, permission was granted and I also incorporate paragraph 12 and 13 of the judgment of Lord Justice Beatson granting that permission.

"12 "Mr Sharma, who appeared this morning and supplemented his succinct written submissions with equally succinct oral submissions, relied on the decisions in Edgehill [2014] EWCA Civ 402 and Singh [2015] EWCA Civ 74 for the proposition that the provisions of the New Rules could not be applied to applications pending before they had come into force. Those cases and the decision of this court in Haleemudeen, concerned the increase in the qualifying period from 14 years to 20 years which came into effect on the rule change.

13. Mr Sharma submitted that the way in which the application of the change in the rules was material to this application was that, before the amendment, the limited leave that would have been granted would have been three years and not two and a half years. There are downstream consequences of that difference. I take no account of the downstream consequences but in view of the decisions in Edgehill and Singh, it is right to give leave on this ground. It may be that the decision of this very experienced Upper Tribunal on 26 March 2014 was handed down at a time before those decisions or very shortly after them as was the position in respect of Edgehill in Haleemudeen where Edgehill was not cited."

The claimants’submissions

On ground 1 the claimants submit that this issue is not finally settled as a matter of law despite the decision of the Court of Appeal in Singh. The claimants refer to the fact that Singh is only one of three Court of Appeal authorities on the point.

In opening, the claimants made two particular submissions and as a result of one or both of these submissions submitted I should not follow the Singh decision. The claimants did not suggest that the hearing of this claim should be stayed pending the outcome of the Court of Appeal decision in Thomas nor did they suggest that I should apply Singh in this case but they would then reserve their right to argue later that Singh was wrongly decided. For the first submission, they relied upon the grant of permission to appeal by the Court of Appeal in the Thomas case and in particular submitting that paragraph 13 of Lord Justice Beatson's judgment shows that the Singh issue is not settled. Secondly, they sought to rely upon an ambiguity in the terms of HC 565 which they say is demonstrated by the subsequent further change introduced by HC 760.

The claimant submitted on that ground that it was not clear that words "those provisions" in paragraph A277C in its HC 565 version were a sufficiently clear reference to the provisions of Appendix FM or at least to the provisions of Appendix FM which were applied to the claimants in this case. That these words are not clear is demonstrated by the subsequent need to replace them with the more detailed and specific terms of HC 760. However, by the end of his opening argument, Mr Balroop had very fairly withdrawn this ground, accepting as a result of argument that the words “those provisions” must mean something and must include the relevant provisions in Appendix FM with and without distinction between the various provisions.

The Defendant's submissions were that, first, Singh is the only case which addresses HC 565 and Edgehill and other cases are not in point. The court is not being asked to choose between Singh and conflicting cases. Secondly, the two present cases are on all fours with Singh. Thirdly, I am bound by the Court of Appeal decision in Singh. After 6 September 2012, the defendant was and is entitled to take into account Appendix FM in deciding private or family life applications even if made prior to 9 July. There is no basis in the light of settled law in Singh for the challenge on ground 1. As to Thomas, the Defendant submitted the grant of permission did not alter the fact that I remained bound by Singh. As to the claimant's second submission, the Defendant submitted it is clear that words "those provisions" in HC 565 version of A277C are referring to Appendix FM and in any event that is what was found in Singh.

Analysis

In my judgment the claimants submissions on ground one are unfounded. First, I am bound by the decision of Court of Appeal in Singh and in particular the conclusion at paragraph 56(2) of the judgment of Lord Justice Underhill. That decision is clear. The starting point is the Odelola principle, that New Rules do apply to an application made before the change in rules. That whilst HC 194 was a special provision which displaced the Odelola principle for cases decided between 9 July and 6 September 2012, HC 565 contained no equivalent provision but rather stated that the Odelola principle is preserved. There is no conflict with Edgehill or Haleemudeen as indeed Lord Justice Underhill held in Singh. This application on this ground was stayed pending the outcome of the application permission to appeal to the Supreme Court in Singh. That application has now been refused and it is beyond doubt that Singh is binding authority on the point.

Secondly, this state of affairs is not affected by the fact that the Court of Appeal granted permission in Thomas. I make four observations in relation to Thomas. (1) The description in paragraph 12 of Lord Justice Beatson's judgment of the principle for which Singh is there said to be authority, does not easily fit with what Singh actually decided. It is not clear that in Thomas the Court of Appeal was taken to Singh in any detail. (2) The reason behind the grant of permission in that case appears to be that the upper tribunal did not at the time that it considered the case have the benefit of Edgehill and Singh. (3) I note that it was effectively an ex-parte application. There was no representation from the respondent and so the court did not hear argument from both sides. (4) Most importantly, in any event Thomas is not a decision that Singh is wrong and I remain bound by Singh.

Thirdly, the claimant's argument based on the subsequent amendment to paragraph A277C made in HC 760 was without foundation. Leaving to one side to the fact that I am bound by Singh, there can be no doubt that the words "those provisions" in the earlier version of A277C refer to the relevant provisions of Appendix FM in the rules. The claimants quite properly in my judgment ultimately withdrew that argument. Accordingly ground 1 fails and it follows that the second claimant's claim will fall to be dismissed.

Ground 2 Unfairness

I now turn to consider ground 2 of the first claimant's challenge.

The first claimant's case on ground 2 is that the decision in her case was unlawful – it was unfair both because it was taken in breach of a legitimate expectation that it would be taken at a time before the rules changed and because there was such excessive delay between the application and the decision as to give rise to a conspicuous unfairness amount to an abuse of power.

Factual History

The sequence of events relating to the first claimant's application is as follows.

On 30 March 2011 the first claimant by her solicitors applied for leave to remain under Article 8. The application was made in a long letter and on the standard form FLR(O) and with accompanying documents, providing detailed information. The Defendant has no criticism of the level of detail provided.

On 11 April 2011 the Defendant acknowledged the application by letter. There was then a gap of 8 months where nothing happened and on 16 January 2012 the first claimant’s solicitors wrote two letters. They wrote one letter to the UK BA department dealing with the application and one letter to the complaints unit. In its letter to the complaints unit, the claimant solicitors wrote inter alia,

"Our client's application for a leave to remain in the UK was lodged on 30 March. This application is still outstanding for over 10 months.

Our client is anxious about the lack of progress on her matter. We would be obliged if you could look into her matter."

In the letter that was sent directly to the UKBA's the main unit they wrote as follows:

"We are very much concerned about the lack of progress with our client's application for leave to remain in the United Kingdom which was submitted to you on 30 March 2011 …. To date the only response from your office is a acknowledgement letter of 11 April 2011. Her application has now been subsisting for over 10 months. We humbly request that you have compassion and consider the particular circumstances of our client's matter and grant her leave as sought."

Then reference is made to case law and then at the end of the letter:

"Kindly inform us as soon as possible as to the progress of her application to enable us to advise our client accordingly."

On 1 February the Defendant sent two letters from different departments. First, the complaints team sent a letter responding to the first of the two letters of 16 January which include the following terms:

"I am sorry your client felt are our service did not meet they are expectations. Your letter has been referred to the relevant team so they can provide a response. They will aim to respond to your letter within 20 working days. If you have not heard a response after 20 working days, please contact UKBA complaints team at the address above"

The letter was signed Complaints Team.

On the same day a letter from department ICC3 at the UKBA was sent dated the same date. Mr Hilton wrote as follows:

"Firstly, I can only apologize for the delay in dealing with your application but as you may or may not be aware, we currently have a high volume of applications to look through. However, I have cascaded your letter on to a member of my team and hope a decision will be reached within the next four to five weeks. However, if you have any queries in the interim, please don't hesitate to contact us." (emphasis added)

I would point out that this letter appears not to have been received by the first claimant until 9 February and that was therefore received after the receipt of the letter of 2 February to which I next refer.

In the letter of 2 February someone from ICC3, (not the same person as had written the 1 February letter), wrote to the first claimant’s solicitors asking for additional documents under eight categories for the purpose of deciding the application. The letter concluded by pointing out that:

"To enable the application it to be considered fully and promptly, we need all the above documents. It is therefore essential that you use the enclosed return label and reply within 14 days."

The first claimant’s solicitors did reply promptly. On 9 February 2012 the first claimant’s solicitor responded by letter complying with that request for further documents and information and providing a number of documents. In that letter, the solicitor pointed out at paragraph 4 and in answer one of the questions, that the first claimant initially lived with the father but "She is currently receiving assistance in regards to her child from the Hackney Social Service."

The next stage is that on 16 July 2012 the first claimant’s solicitors wrote to the UKBA asking for a progress report on her case to date which “has been pending for quite some time” and asking for information as soon as possible. On 30 July 2012 the UKBA responded in the following terms:

"We write in response to your letter dated 16 July with regard to your client's current application for leave to remain in the UK. Your client's case was being progressed in our Croydon office. However, this processing team has now been disbanded and all Croydon case work has been forwarded to our Sheffield office. We will be processing your client's application in due course".

Then the next event was the decision itself on 9 October 2012 granting discretionary leave and in the terms of the letter I have already described.

The Parties Arguments

The first claimant's submissions.

The first claimant's case of unlawful conduct is put on two bases. First, the letter of 1 February 2012, the second letter to which I referred, in combination with the surrounding factual circumstances including the request for, and provision of, further information by 9 February 2012 gave rise to a legitimate expectation that her application would be dealt with within four to five weeks and that the failure to act within that time period was an unlawful breach of that legitimate expectation.

Secondly, in any event, the delay in dealing with her application was excessive and in breach of the duty to act fairly and/or gave rise to conspicuous unfairness amounting to an abuse of power.

In relation to legitimate expectation, the first claimant submitted that the 1 February letter amounted to a commitment to decide the application within four to five weeks and was understood by the first claimant to mean that a decision would be made within that time period. The detriment sustained by the first claimant was the loss of the more advantageous leave terms which would have applied under the Old Rules had the decision been taken within that time frame.

In relation to the second basis, the first claimant submits there was an overall delay of 18 months in dealing with the application. In the circumstances of this case, that was excessive and unreasonable and gave rise to conspicuous unfairness.

The first claimant further submitted as follows in relation to the second ground.

118. In the amended grounds and skeleton Mr Balroop placed substantial reliance upon the well-known case of R (on the application of Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744 as an exception to the well-known Ravichandran principle. However, in oral argument he accepted that as a result of the recent Supreme Court decision in the case of TN (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40, Rashid no longer represents good law.

119. He submitted that most of the authorities on delay relied upon by the Defendant, in particular, R (on the application of FH and others) v Secretary of State for the Home Department [2007] EWHC 1571 admin and SH Iran v Secretary of State for the Home Department [2014] EWCA Civ 1469 were asylum cases and indeed concerned either the backlog of failed asylum claims or the so-called “legacy” cases. He submitted that in asylum cases there is good reason to apply the law and policy at the time of a decision because the issue is whether the claimant remains at risk. The position is different where the claim is an initial claim and also where the claim is based on human rights.

120. Whether there is “good reason” for a delay depends on the factual context of the particular case. In the present case there is no good reason. This was a standard application. It took the Defendant 10 months to engage and the further delay was due solely to the fault on the part of the Defendant and due to woeful administrative errors. 18 months overall delay for a standard initial claim based on human rights, must, he said, be excessive.

122. That excessive delay has caused conspicuous unfairness for the first claimant. She now has to wait an extra four years before qualifying for indefinite leave and leave has been granted without recourse to public funds.

The Defendant's submissions

The Defendant submitted as follows. First in relation to legitimate expectation, in order to establish such an expectation, there has to be a promise or representation or commitment. Here the Defendant’s conduct did not give rise to any legitimate expectation as there was no commitment in the letter of 1 February to decide the application within a particular time frame and further, there was no reliance by the first claimant.

Then as to unfairness and abuse of power more generally, the Defendant submitted that Rashid no longer represents good law which is in fact common ground. Nevertheless, she does accept that there are cases where delay can give rise to unfairness, sufficient to impugn a decision. She submitted that the relevant principles are to be found in the decision of Mr Justice Collins in FH, cited above and in particular at paragraph 30 of that judgment. The principles enunciated are principles of general application which apply equally to an Article 8 claim such as the present.

Applying those principles to the facts, the Defendant submitted:

127. This was a case of administrative delay and not a case of failure to apply the correct policy or the making of an unlawful decision.

128. There was some delay but it was not so excessive as to be regarded as manifestly unreasonable and therefore conspicuously unfair. The threshold in paragraph 30 in the FH case was not breached. This was not a case of pure inaction on the part of the Defendant. Moreover, unlike other cases, there is no evidence that the first claimant was particularly vulnerable or sustained particular prejudice arising from any delay, other than that arising from the change of rules.

129. As to the suggestion that in any event because of the delay the Defendant as a matter of discretion should have applied the Old Rules, the Defendant refers to paragraphs 71 and 72 of the recent Supreme Court decision in TN (Afghanistan).

Analysis

131. The relevant legal principles.

In this context I have been referred to and considered the followings cases (I enumerate those cases and the particular paragraphs references without setting out the passages): Ravichandran in 1996; Rashid paragraphs 34, 36 and 48 to 54; FH and in particular paragraphs 1to 3, 6, 10, 20, 22, 25, 27 and 28 and 30; NA and AA v Secretary of State for the Home Department [2009] EWHC 420 Admin, the decision of Belinda Bucknall QC sitting as a Deputy High Court Judge paragraphs 41 and 42; SH Iran v Secretary of State for the Home Department , supra, at paragraphs 36 and 63 and TN Afghanistan , supra, at paragraphs 39 to 40, 51, 53, 71 and 72. From these authorities I derive the following principles in summary.

133. The basic rule in immigration decision making is that decisions are made on the basis of rules and policy in force at the time of the decision rather than the date of the application. In the particular case of asylum, this rule is reflected in the principle if Ravichandran, namely that the position is considered by reference to the circumstances at the date of the asylum decision itself or the date of asylum appeal, if that arises. This principle finds expression also in the Odelola principle which applies in relation to the temporal application of immigration rules. Absent a transitional provision, the fact that by the time an application comes to be decided there has been a change to more restrictive rules, does not give rise to any actionable unfairness.

(2) As regards legitimate expectation, such an expectation arises from a promise or commitment and a stated aim or aspiration is not sufficient. The position might be different where there has been an explicit representation that a decision would be given within a specified time. In this regard see the case of SH at paragraph 44, citing the judgment at first instance of Mrs Justice Simler paragraph 45 and also paragraph 63 of SH. I add that reliance, whilst not a requirement, is also likely to be relevant in considering the overall fairness in a legitimate expectation case.

(3) There is a public law duty upon the Secretary of State to decide any application - including in this case an application for leave to remain on Article 8 grounds - within a reasonable time; see FH paragraph 6 to 8 and R (on the application of S) v Secretary of State for the Home Department [2007] EWCA Civ 346 paragraph 51 which is there cited in FH.

136. Certainly in asylum claims at least, the position is as stated by Mr Justice Collins in FH at paragraph 30:

"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 of 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."

Whether in any particular case delay is so excessive as to be unreasonable and unlawful will depend on all the facts of a particular case and any particular facts which give rise to a need for a more urgent consideration of the application in question.

139. Delay and maladministration are not per se unlawful. There must be some past unlawful act or omission; see SH paragraph 36 and NA paragraph 43. Excessive delay as described in FH paragraph 30 would, in my judgment, constitute an unlawful omission and hence conspicuous unfairness amounting to an abuse of process.

(6) If there has been a prior breach of obligation, for example, unlawful delay, it is for the Secretary of State to exercise her discretion afresh and not for the court to direct the grant of discretionary relief; see TN Afghanistan paragraph 72.

(7) Finally, whilst the authorities cited above concern asylum cases and, in large part, cases other than initial claims for asylum, in my judgment there is no reason why the public law principles there stated are not of general application and why they should not also apply for an initial claim for leave under Article 8. (In this regard in FH itself, Mr Justice Collins (at paragraph 27) approached the case of one of the claimants as if he were akin to a person making an initial human rights claim). Further, I cannot but note that, before it was recently disapproved of, the principal case relied upon by the first claimant to support her case before me was Rashid and Rashid itself was an asylum claim. It is likely that the application of those principles, - for example, whether particular periods of delay will be excessive - will be different depending on the nature and circumstances of the claim for leave. So, for example, the enormous backlog of failed asylum claims or legacy claims, might justify a longer decision-making period. Nevertheless, I consider that the principles themselves are of general application.

The application of the principles to the facts of the present case.

(1) Legitimate Expectation

First, as regards the claim based on legitimate expectation, contrary to the first claimant's submission, the terms of the letter of 1 February did not constitute a commitment or an indication that her application would be dealt within four to five weeks of that date. The statement was plainly one of aspiration. It was hoped that it would be decided within that period.

Secondly, I do not consider that the surrounding circumstances turned this statement into one of commitment. In fact, by the time that the letter of 1 February was received, the Defendant had asked for, and the first claimant was in the process of providing, the further information set out in the Defendant's letter of 2 February. Whilst I accept that the exchange of correspondence related to the further information may have lent strength to the hope in engendered in the first claimant that the application would be resolved promptly. I do not consider that it was sufficient to convert the aspiration expressed by the Defendant into a commitment or a promise on her part to make a final decision within a particular time frame. Here I accept the submission of Miss Price for the Defendant that, whilst the provision of such information might well clarify the position, there would or might have been a need on the part of the Defendant to consider that information and some prospect that it might give rise to further enquiries.

I would also add further that whilst because the change of rules the claimant has sustained detriment, there is no evidence to suggest that she herself acted in any way in reliance upon the hope expressed in the letter of 1 February 2012.

For these reasons the claim founded on the specific basis of legitimate expectation arising from the terms of the letter of 1 February 2012 cannot succeed.

(2) Excessive Delay.

As for the more general complaint that the delay in this case was excessive, the overall period between application and decision was some 18 months.

First, as to the period up to 16 January 2012, there was a period of 8 months of complete inactivity in relation to the application. The Defendant took no action but equally, the first claimant and her representatives also remained quite inactive. Whilst it is the case that the Defendant advised applicants against contacting her, nevertheless there is nothing to suggest that in this case the first claimant was viewing the application with any urgency. (I note in passing that in this case the second claimant has not relied on this second ground in a case where there was a delay of six months which had had the same detrimental effect arising from the change of rules in her case.) In the letter of 1 February, the Defendant did explain that she was dealing with a high volume of cases.

Secondly, as the first claimant accepted in argument, in my judgment, it is not the ultimate change in the rules of July 2012 which renders the delay potentially unreasonable and thus in breach of duty. It can only be the reasonableness or unreasonableness of the period of the delay itself in the context of the then current circumstances of the application which falls to be assessed in line with the duty to act within a reasonable time.

Thirdly, the key period of delay is that between February or perhaps mid March (being the expiry of the four to five-week period) and 9 October when the decision was ultimately made - a period of 6 to 7 months. A, if not the, principal reason for this further delay is stated to have been the disbanding of the UKBA team in Croydon dealing with first claimant's application and the moving of her file to the Defendant's Sheffield office. Whilst this in itself may not amount to serious maladministration, this is no comfort to the first claimant. In my judgment given the prior correspondence about delay, the complaint to the complaint's department and the aspiration expressed in the 1 February letter, the Dfendant's conduct thereafter is properly open to criticism by the first claimant. It seems to me that the Defendant should have done better and should have got on with it. It was an administrative error not to pick up on the first claimant's case sooner, given that correspondence.

I further accept that the reasonableness of particular periods of delay in FH and other asylum backlog cases do not have direct application to the present case.

However, whilst this was an administrative error on the Defendant's part, I do not consider that verall the delay was so excessive as to be manifestly unreasonable. This is a case of administrative error but there is no evidence of very serious or sustained maladministration. The Defendant had pointed to a high volume of applications. There is no evidence before the Court of a failure to meet any expected decision times or failings in the system leading to unfairness or inconsistency of treatment. Secondly, in this case, unlike others, there is no evidence of particular urgency or particular detriment which was being suffered, as a result of the ongoing delay, by this particular claimant and which the Defendant failed to alleviate - for example, in relation to the support available for her and her child. From the letter of 9 February, it was made clear that the first claimant and her child were in receipt of support.

In these circumstances, in my judgment, whilst there was delay on the part of the Defendant, particularly between March and October 2012, it was not so excessive as to be manifestly unreasonable. Accordingly, the Defendant was not in breach of her public law duty to decide the application within a reasonable time. It follows that the decision ultimately taken did not give rise to conspicuous unfairness.

Accordingly, the second ground for judicial review is not made out.

Finally, I should add that if contrary to the foregoing I had found that the delay was excessive and so the decision was unlawful, I would not have directed the grant of discretionary leave on the terms of the Old Rules. Rather, it would have been a matter for the Defendant to consider the position afresh, both in the context of the New Rules and whether any principle of corrective justice required the making of an exception to the application of those rules.

For these reasons, the claimants' challenge to the two decisions fails and the application for judicial review is dismissed.

I will hear counsel on the question of cost the and any consequential matters. Thank you.

MISS PRICE: My Lord you should have the statement of costs from the last hearing.

JUDGE: Yes, I could not find it.

MISS PRICE: I did hand up a copy, a supplementary copy for the costs in issue that date of the last hearing.

JUDGE: Okay. Yes.

MR BALROOP: My Lord as it said the costs --

JUDGE: Yes. Mr Balroop is the claimant legally aided or not?

MR BALROOP: No, not legal aided. They are not. Just two observations my Lord. Initially, as you identified, these are two very standard straightforward issues that were raised. (1) It is a dispute as to case law and the permission was granted under Edgehill and that was subsequently taken over by Singh. The principles and facts are very straightforward. The application is made before 9 July. Do the Old Rules apply? Do the New Rules apply? One case said yes which permission was granted on, another case said no. At that time on 4 March no detailed grounds were filed because the position was that there will be a stay pending Singh's application for permission to the Supreme Court.

JUDGE; Yes.

MR BALROOP: That matter was changed to an amendment for the first claimant on fairness which was all detailed with documents already in the bundle. So there was no new service of documents.

JUDGE: Right.

MR BALROOP: These documents were already in the bundle. Therefore, when the Secretary of State responded, it was just on that basis because there was no objection to the amendment in any event.

JUDGE: Right.

MR BALROOP: When you take that into account in that, what I am trying to breakdown is a very simple matter of the assessment of the legal principles of Rashid and Edgehill and Singh. When you look at the attendances on the Secretary of State --

JUDGE: Which schedule are you looking at?

MR BALROOP: This is the first schedule.

JUDGE: Can I first of all, are you accepting that you are now going to assessment. You are not going to contest the incidence of costs?

MR BALROOP: No.

JUDGE: Just assessment.

MR BALROOP: Yes. I just ask you take a view of --

JUDGE: The larger or the smaller?

MR BALROOP: The larger one.

JUDGE: Which is a total of £6,908, is that right?

MR BALROOP: Yes. I think the first page is attendances on the Secretary of State.

MISS PRICE: I am afraid I just handed up my copy to you of that so I don't have the first schedule in front of me.

JUDGE: Attendances on the Secretary of State. The 4.7, 1.8 and --

MR BALROOP: Yes. We say bearing in mind the simple issues that involve this tribunal, it seems excessive the amount of communication between the solicitors and the clerk.

JUDGE: Okay.

MR BALROOP: If you turn the page you can see attendances on the (Inaudible) is just 2 and a half hours.

JUDGE: Yes.

MR BALROOP: And you look on attendances on others again, you can see the increase in regards to two very narrow issues.

JUDGE: So you are disputing the attendance on the Secretary of State.

MR BALROOP: And attendances on others.

JUDGE: You think that is too many.

MR BALROOP: Bearing in mind the issues that have arisen in the case. The first issue is there are two cases, Edgehill and Singh predominantly. The second issue is just facts related to delay which was identified by the evidence already in the bundle which is not disputed.

JUDGE: In the bundle that you provided effectively.

MR BALROOP: Yes, the claimant's bundle.

JUDGE: How many hours is that? That was that 2.5, 5.6, 7.1, is that right?

MR BALROOP: Yes.

JUDGE: The first is 9 as I make it and the second is 7.1, yes?

MR BALROOP: Yes. Those are two observations I ask the court to take into account when assessing costs.

JUDGE: I am grateful for that. There will be an order that the claimant pays the Secretary of State's costs of the judicial review in principle. I have been asked to do a summary assessment. A schedule has been handed up and Mr Balroop very fairly has pointed out that some of the hours of attendances in the Secretary of State's statement of costs are excessive, in the light of the relatively straightforward issues ground 1 being a straightforward question of law and ground 2 being based on facts which were all effectively provided in the claimant's original bundle. Under attendances, there is a claim for letters and emails for nine hours and the under the claim for attendances on others, there is a claim for telephone, letters an amount of 7.1 hours. That gives a total of 16.1 hours I think as I make it and it does seem to me that they are somewhat excessive and I am going to allow 11 hours of those 16 hours.

MISS PRICE: Can I just address you on the points made by my learned friend.

JUDGE: Sorry, I am awfully sorry. I am really sorry.

MISS PRICE: I will be brief.

JUDGE: That is alright.

MISS PRICE: This is a case that has been going on for nearly two years.

JUDGE: Yes.

MISS PRICE: And it is also a case where there was an adjournment necessitated and because of the decision in Singh and the fact that there was an application for permission to appeal. So it is a case where the attendances on the Secretary of State has been important to keep the client updated and has gone on for longer than usual.

JUDGE: I understand that.

MISS PRICE: And just in respect of the schedule overall, there are in a grand total on the first schedule of just under £7000. Your Lordship will be familiar with schedule of costs in cases like these in Administrative Court and it is a very reasonable schedule overall and in respect of attendances, it is in terms of the second ground, it was a wholly new ground and it was important to seek instructions from the Secretary of State as to her position on delay and this was something that had to be looked at completely afresh. It was necessary to draft detailed grounds and my instructing solicitor had to brief me to do that to deal with the point. So I only make those points just in terms of the additional --

JUDGE: Thank you Miss Price. I apologize to Miss Price. I had thought that she was not going to reply but she has replied on the question of summary assessment. First, I accept that the case has gone on for some considerable time. Secondly, there was a need to take instructions on ground 2 although as I understand it that very little further factual material was put forward as a result of those instructions. Having indicated my provisional view, I remain of the view that those 16 hours are excessive but I will slightly amend and I will allow 12 of the 16 hours. What that means mathematically -- perhaps you can draw up the order with the right (Inaudible) but it will be roughly £650 off the total bill that you are seeking, roughly. Can I ask that counsel provide an order? You are adding the £596 in as well presumably.

MISS PRICE: As (Inaudible).

JUDGE: Can I ask you to agree it?

MR BALROOP: Sorry. I forgot the 596. My apologies. It is just one thing. Obviously the solicitor attended the hearing today which is just a judgment hearing. I do not think the solicitors are necessarily needed to attend for a judgment hearing.

JUDGE: I hear your submission but I am going to leave it as it is. So effectively I think I am reducing the overall bill by 4.1 hours is my understanding and if you could provide the court with an order in those terms and with the right mathematical figure it will then be provided to me. I am grateful to both of you. I hope that is sufficiently in time for you. I know you have to dash so please…

MR BALROOP: No instructions to appeal or otherwise.

JUDGE: Very well. Thank you.