Ebrahim v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Philip Mott |
| Judgment Date | 17 December 2013 |
| Neutral Citation | [2013] EWHC 4500 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/11/2013 |
| Date | 17 December 2013 |
2013 EWHC 4500 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Philip Mott QC
(Sitting as a Deputy High Court Judge)
CO/11/2013
Ms V Laughton (instructed by Lighthouse Solicitors) appeared on behalf of the Claimant
Mr Z Malik (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
THE DEPUTY JUDGE: This is a renewed application for permission to challenge the decision of 4 October 2012 to grant 30 months discretionary leave to remain to the claimant. The claimant is aged 53. He arrived in the UK in February 1991. He had leave to remain or visas allowing him to remain lawfully until June 1995. In March 1996 he claimed asylum which was refused in July of that year and his appeal was dismissed in December 1997. In February 1998 he applied for leave to remain which was refused in June of that year. Then in December 2001, he applied again for leave to remain based on an intended marriage but that too was refused in July 2002. In August 2002, he made a human rights claim. To this, unfortunately, there was no response, although the Border Agency was chased on a number of occasions between 2006 and 2008. In October 2008, he completed a legacy questionnaire and, on receipt, it was confirmed by the defendant that this was a legacy case and thus was intended to be concluded by July 2011.
In March 2011 he made further submissions. On 29 July 2011 he received a letter apologising for the delay, details of which letter I will return to later in this judgment. No decision was made and a pre-action protocol letter was sent in December 2011, followed by a judicial review claim, although not the current proceedings, in March 2012. Although I have not seen the full paperwork relating to that claim, it appears that he has complained of the delay in reaching a decision and therefore would have required or sought an order that a decision should be made. In fact, it was listed on 4 October 2012 for an oral permission hearing, and on the same morning a decision by the defendant to grant discretionary leave was served on the claimant, and the judicial review claim was withdrawn by consent.
The discretionary leave, when details were sent through, consisted of 30 months leave without recourse to public funds. That has given rise to the current judicial review claim which raises two grounds. Firstly, that the delay was so great as to be unlawful, causing prejudice or conspicuous unfairness to the claimant and that the defendant has failed to take this into account properly in the decision to grant discretionary leave. The second ground is that, in any event, the claim fell within exceptions to the usual 30 months discretionary leave policy, and should have been granted a longer term, at least three years discretionary leave, which would carry with it the prospect of indefinite leave to remain after six years.
I will deal first with the first ground. The delay in question is between the human rights claim lodged in August 2002 and the decision in October 2012, a period of just over 10 years. The claimant accepts that the principles of FH apply in the decision of Collins J reported at [2007] EWHC 1571 (Admin). And, in particular, at paragraph 30 in the conclusion of that judgment in which Collins J says:
"It follows from this judgment that claims such as these based on delay are unlikely, save in very exceptional circumstances, to succeed, and are likely to be regarded as unarguable. It is only if the delay is so excessive as to be regarded as manifestly unreasonable and to fall outside any proper application of the policy or if the claimant is suffering some particular detriment which the Home Office has failed to alleviate that the claim might be entertained by the court."
This was a very long delay, but it must be looked at in the context of a huge backlog and the entire legacy project, the figures for which are well known and are well documented in a whole series of cases. Quite clearly inadequate resources had been provided to deal with claims for some time. Quite clearly there is an arguable case of maladministration. It is not, in my judgment, arguable that it is, in this context, unlawful. This is not a case of detention or one involving other substantial prejudice. The claimant's real complaint is that over time practice and policy changed. If a positive decision had been made years earlier, he would have been likely to be granted indefinite leave to remain. But that creates no rights or basis for this court to intervene. Changes of policy come...
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