MJ (Iraq) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson |
| Judgment Date | 14 June 2013 |
| Neutral Citation | [2013] EWCA Civ 932 |
| Docket Number | Case No: C4/2012/2667 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 June 2013 |
[2013] EWCA Civ 932
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMISTRATIVE COURT
(HER HONOUR JUDGE BELCHER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Case No: C4/2012/2667
Mr Tasadar Hussain (instructed Broadway House Chambers) appeared in the Applicant.
Mr Karim (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
(As Approved)
This is an application for permission to appeal to the Court of Appeal. The applicant is a national of Iraq. He came to the United Kingdom in June 2002 and claimed asylum. On 24 February 2003 the Secretary of State refused the application for asylum but granted exceptional leave to remain for a period of six months. The applicant appealed to the Immigration Appeal Tribunal and that appeal was dismissed on 19 November 2003. The applicant subsequently made various applications to remain in this country, which were refused on 31 January 2012. There was a subsequent letter dated 4 April 2012 from the Secretary of State, who retracted paragraphs 43–48 of the refusal letter dated 31 July 2012. Nevertheless, that letter maintained the refusal to grant further leave to remain or asylum on a number of grounds as there set out.
The applicant was aggrieved by the decision of the Secretary of State and commenced proceedings for judicial review to challenge the Secretary of State's decision. The principal contention in the judicial review proceedings was this. If the original decision made on 24 February 2003 had been made a few days earlier there would have been in force a policy under which the applicant would have been granted exceptional leave to remain for four years; the ultimate consequence of such a grant of leave to remain would have been that the applicant could stay in this country.
The policy changed in February 2003. The much more limited leave to remain, namely six months exceptional leave to remain, was granted to the applicant under the new policy.
Mr Hussain, who appears for the applicant today, says that the change of policy occurred just three days before the decision letter sent to the applicant on 24 February 2003. I have no reason to doubt what Mr Hussain says, although I do not have the material before me which enables me precisely to identify the date of the change of policy.
The essential argument in the judicial review proceedings was that there had been delay in dealing with the applicant's claim for asylum and leave to remain. The average period for dealing with such applications was a period of seven months. In this case the applicant's application was dealt with in eight months. If it had been dealt with more speedily, then the applicant would have benefited from the earlier policy towards asylum seekers from Iraq. The reason for the change of policy in February 2003 was of course that by then the Iraq war was in progress, circumstances were changing, and a different view was taken by the Home Office and Immigration Authorities as to the viability of future returns to Iraq.
The application for permission to proceed with the claim for judicial review was refused on paper by HHJ Gosnell, who wrote:
"The claimant cannot possibly succeed on the R(S) argument,…. there is no evidence that in this case the original delay in claiming with the claimant's application was caused by the arbitrary postponement of his application to achieve performance targets. The delay in this case was not excessive and the claimant was dealt with in accordance with policy which applied at the time the decision was taken."
The applicant was aggrieved by the written decision and applied at an oral hearing for permission to proceed with the judicial review claim. On 10 October 2012 HHJ Belcher heard and dismissed the renewed application to proceed with the judicial review claim.
HHJ Belcher wrote as follows, in paragraph 7 of her judgment:
"This case was dealt with in a period of eight months, against an average o seven months, or indeed averages in the following years of 12 months. There cannot, in my judgment, be any evidence to suggest that there was an unfair delay, even though the result was that by the time this came to be decided the four-year policy had been superseded by a six-month policy at that time."
The learned judge then turned to HHJ Gosnell's decision and said that she endorsed that decision. In...
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