HB v Secretary of State for the Home Department
|England & Wales
|Lord Justice Buxton,Lord Justice Latham,Lord Justice Longmore
|14 December 2006
| EWCA Civ 1713
|Court of Appeal (Civil Division)
|14 December 2006
|Case No: C5/2006/0628/0691/1053/1273
 EWCA Civ 1713
IN THE SUPREME COURT OF JUDICAT
COURT OF APPEAL (CIVIL DIVISI
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBU
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Buxton
Lord Justice Latham and
Lord Justice Longmore
Case No: C5/2006/0628/0691/1053/1273
Mr Richard Drabble QC, Miss Louise Hooper, Mr Duran Seddon and Mr Patrick Lewis (instructed by Messrs Dare Emmanuel; the Refugee Legal Centre; and the Immigration Advisory Service Solicitors Unit) for the Appellants
Mr Philip Sales QC and Mr Parishil Patel (instructed by the Solicitor to Her Majesty' Treasury) for the Respondent
These appeals were listed as test cases, to clarify the law on the effect of delay by the Secretary of State on claims that rely on article 8 of the European Convention on Human Rights to resist removal from this country. In the event, as I shall demonstrate below, that enterprise failed, first because the effect in law of such delay is already well-settled by authority binding on this court; and second because all of the four cases before us fail on grounds not related to delay.
It is important to note that in none of the four cases before us is any claim made that the applicants have rights under the law of asylum, or otherwise under this country's immigration law. All of the applicants however claim that, although they have no right to remain in this country, to remove them would amount to an interference with rights granted by article 8(1) of the European Convention; and the significance of the delay in dealing with their case is that it is said to deprive the Secretary of State of the ability to assert that such removal is justified under article 8(2) of the Convention.
In the foregoing summary I have deliberately spoken in general terms of "the delay". How and in what respect the Secretary of State delayed differs significantly between the various cases. In HB, EB and JL the complaint is that the applicant originally had a claim to asylum or other relief. Because of the policy then operated by the Secretary of State with regard to the particular countries from which the applicants came, had those claims been dealt with in a reasonable time by the Secretary of State the applicants would have received some sort of right to remain in this country. Although there is uncertainty in particular cases, I will assume for the purposes of this general exposition that each of them would have been granted Exceptional Leave To Remain [ELR]; which in the normal course, and in the absence of any misbehaviour on the part of the applicant, would eventually become Indefinite Leave To Remain [ILR]. However, while the applications were pending conditions in the applicants' home countries (for instance, in the case of EB, Kosovo) improved, or were perceived to have improved, to the extent that applicants could safely be returned there. So the asylum claims of HB, EB and JL when they eventually came to be considered were all rejected. Those appellants now claim, in applications under article 8, that account should be taken of the delay in handling, and thus failure, of their previous asylum claims. I will refer to these, as they were referred to in argument, as hypothetical decision cases.
The case of FI is different. FI originally did make an asylum claim, but that was dismissed as long ago as 1999, and no argument is raised as to the delay that undoubtedly occurred in dealing with it. FI, rather, asserts that there was delay in dealing with what by then was and was only an article 8 claim. That raises different issues from the other three cases, and I will deal with her case separately.
Hypothetical decision cases: some general observations
First, the applicant has to establish that he has rights, on the basis of his life in the host state, under article 8(1) . That has absolutely nothing to do with the situation in his state of origin on which any asylum or immigration claim would have to be based. And it therefore follows that however gross the delay in dealing with his asylum claim may have been, and however much that delay may have caused him to lose the award of ELR or ILR that he would have received if the application had been dealt with promptly, he has no way of complaining about that delay unless he has, adventitiously, brought himself within article 8(1) . That is quite simply because, in asylum terms, at the time when his case was heard the improvement in conditions in his home country had removed his need for international protection.
Second, it is not easy to formulate the status in an article 8 application of a previous delay in dealing with an asylum application. Two explanations may be suggested, both of which rest significantly on policy rather than on logic. It may be argued that if the Secretary of State had dealt with the asylum application promptly the applicant would have obtained the right to stay in this country well before his present article 8 claim arose. It is therefore unfair, granted that he has a potential right to be here under article 8(1) , for the Secretary of State not to honour that right. Alternatively, and with more regard for the structure of article 8, the Secretary of State's refusal of the article 8 claim rests upon his assertion of the need to enforce a proper immigration policy. He cannot be heard to make that claim if the history of the case demonstrates that the policy on which the claim relies has not been operated properly.
Third, the argument rests upon asserting that there has been undue, unreasonable, or however it may be characterised delay in dealing with the previous asylum claims. As we shall see, the three cases involved delays of some four years between the application for asylum and the Secretary of State's decision. The Secretary of State put in a good deal of evidence explaining the unusual pressures upon his service in the period in question, broadly affecting the early years of this century, in particular from an unforeseen upsurge of applications seeking relief from the then regimes in Kosovo and Iraq; and Mr Sales QC rightly warned us of the dangers of a court passing judgement on the reaction of administrators to such problems. I see the force of that. And I in particular accept that it is no function of this court to discipline or punish the Secretary of State and his department, and that it would not be appropriate to grant a party relief that would otherwise not be available just in order to express concern or censure over administrative failings. All that said, however, there is force in Mr Drabble QC's observation that this country simply has got to make arrangements to deal with its international obligations under the Refugee Convention, whatever the difficulties, and where those arrangements have fallen down difficulty or lack of resources cannot be prayed in aid. In most of the present cases I am therefore prepared to assume that the delays were unreasonable. At the same time, however, where a tribunal has made a specific finding as to the reasonableness of the delay, as did the AIT in HB(Ethiopia), see §28 below, an appellate court may be unwilling to interfere with that finding. If such assumptions or determinations as to the reasonableness of delay were to be crucial to any particular decision, as in the present cases they are not, the difficult issues involved would need much fuller and more anxious consideration than we have given to them in this appeal.
Fourth, however, as Mr Sales pointed out, even if it is accepted that delay has occurred, it will be necessary to specify when the decision ought to have been taken. That is because the whole case rests upon the hypothesis that the decision should have been taken before the date on which the policy changed, and the granting of ELR or ILR was withdrawn. That, with respect, must be right. In the event, the point did not matter in any of the present appeals, but in other cases it might be of considerable significance.
Fifth, a different case arises where the application is not under article 8, but under one of the immigration rules, for instance for admission on grounds of marriage. The Secretary of State may seek to apply procedural rules, most conspicuously that a person with no other right to be in this country must return to the country of origin to make the application. If the case involves a hypothetical decision granting leave on non-article 8 grounds, then it may be argued that it is inappropriate for the Secretary of State to rely on his own wrong, in failing to take that decision, to insist under the procedural rule on treating the applicant as a person with no right to be in the United Kingdom.
Against that background I now consider the law in relation to delay.
The law in relation to delay: the authorities
The claimant has first to establish that he satisfies the requirement of article 8(1) that he has an established family life or (subject to the discussion in §38 below) private life in this country. If he is unable to do that, article 8(2) , to which alone the present issues of delay are relevant, simply does not arise.
As to article 8(2) in the context of removal from this country of persons who have no right in domestic law to be here, in  Lord Bingham of Cornhill said:
Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable on a case by case basis.
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