R(FH; K; A; v; H; SW; HH; AM; SI & ZW) (Claimants) Secretary of State for the Home Department (Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice COLLINS |
| Judgment Date | 05 July 2007 |
| Neutral Citation | [2007] EWHC 1571 (Admin) |
| Docket Number | Case No: CO/7924/8839/6822/7450/8877/7449/9430/10022/9805/10036/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 July 2007 |
Mr Justice Collins
Case No: CO/7924/8839/6822/7450/8877/7449/9430/10022/9805/10036/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Manjit Gill, Q.C. & Mr Adam Tear (instructed by Messrs White, Ryland) for the Claimants (FH; SW & AM)
Mr Adam Tear for the Claimants (SI & ZW)
Mr Manjit Gill, Q.C. & Mr Edward Nicholson (instructed by Wilson & Co) for the Claimants (V; H & A)
Ms Fiona Beach (instructed by Duncan Moghal) for the Claimant (K)
Mr Robert Jay, Q.C. & Ms Samantha Broadfoot (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 20 June 2007
These ten cases have been heard together because they all raise a similar issue. In each it is alleged that the defendant has failed to decide upon an application to be allowed to remain in this country within a reasonable time. The court was asked to order that the applications be considered forthwith and that declarations be made that the delay was unlawful.
The claimants' are what are described by the Home Office as incomplete asylum cases. This means that an initial decision was made on a claim for asylum and the application in question was a subsequent one. In most of the cases before me the original claim was rejected, an appeal was unsuccessful but removal had not taken place. There was then what was said to be a fresh claim based upon further evidence or circumstances which were said to justify a fresh consideration of the application. In FH, notwithstanding the refusal of her initial asylum claim, there had been a grant of discretionary leave to remain for a time on humanitarian grounds and her application was to extend her leave. In H, the initial refusal had been made as long ago as June 2000 and so no consideration had been given to any human rights claim, the refusal having been prior to the coming into force of the Human Rights Act 1998. This meant that he had an outstanding human rights claim which the defendant had to determine and, if refused, he had a right of appeal: see Pardeepan v Secretary of State for the Home Department [2000] I.N.L.R. 447. In SI and ZW, the appellate authority had upheld the defendant's decision to refuse asylum but had allowed their appeals under Article 8 of the European Convention on Human Rights. This had resulted in the grant of periods of discretionary leave which they were applying to extend.
All the cases are regarded as incomplete since that description applies to an asylum seeker whose application has been refused but who has not been removed. While there are differences in the factual backgrounds which I have set out, the question to be determined is common to all. It is whether the delays in dealing with the applications can be properly be regarded as unlawful so that some remedy can be granted by the court. It is not in the circumstances necessary to refer to any further facts of each claim, subject to matters which I specifically mention in the course of this judgment. I need only record the dates on which the relevant applications were made:—
"Mrs FH: 22 June 2005
Mr K 23 March 2004
Mr A 1 March 2005
Ms V 12 July 2005
Mr H 28 February 2002 & 13 July 2006
Mr SW.. February 2004
Mr HH 24 September 2003
Mr AM 20 October 2005
Mrs SI 28 October 2005
Mr ZW 8 November 2005"
At the commencement of the hearing, I was informed by Mr Jay, Q.C. that the defendant had agreed to consider FH's application as an exceptional case because of her age, her state of health and her need to have her position settled in particular because she wants to pay a visit to Mecca before her death (she is now 78) and cannot leave the country until the application is dealt with. Her claim need not therefore be pursued. In addition, the defendant agreed to consider H's application for a certificate of approval of his desire to marry which had been lodged in July 2006. I suggested that in the circumstances it would be sensible to consider his application, which had been outstanding since February 2002, that he should be allowed to remain on human rights grounds at the same time so that his case could finally be disposed of. Mr Jay was unable to agree to this since he had no instructions on it. It does seem to me that it will be necessary for the purpose of the certificate of approval to consider the claimant's character and history and so the file on him will be before the decision maker. This being so, it would surely be sensible to consider and deal with all outstanding claims. However, in the meantime his claim in relation to the human rights application remains for decision by me.
I can deal with the claims by SI and ZW shortly. Each has applied to extend his discretionary leave. Each made his application while his existing leave was current and so, by virtue of s.3C(2) of the Immigration Act 1971, the leaves are extended while the defendant considers the applications. The only possible difference is that leave extended by s.3(C) lapses if the applicant leaves the country (s.3C(3)) whereas, if there is a current leave which has been granted for more than 6 months and which is not conferred by a visit visa, a return should be permitted during the currency of the leave provided that the circumstances have not changed and the person concerned has not remained outside the United Kingdom for more than 2 years: see Paragraph 20 of the Immigration Rules and s.3(4) of the Immigration Act 1971. Neither claimant is entitled to or has applied for indefinite leave to remain. They will have to have been here in receipt of discretionary leave for a minimum of 6 years before indefinite leave can be considered. In neither case has that period elapsed. The only other difficulty, which particularly affected ZW who wanted to work as a private hire driver and needed a confirmation from the Home Office of his right to be in the United Kingdom and to work, was the absence of a confirmation from the Home Office of his status. That has now been given by letter of 5 March 2007. It undoubtedly should have been given when applied for. However, in the circumstances Mr Tear was unable to argue that there was any real detriment to either of these claimants in the delay in considering their applications and it seemed to me that their claims had become academic. Accordingly, I shall dismiss both of them. I would only draw attention to my observations in the final paragraph of this judgment.
The delays, which in three cases exceed 3 years and in the others (save one) have reached 2 years, are on their face excessive. Mr Gill, Q.C submits and Mr Jay accepts that there is an implicit obligation on the defendant to decide the applications within a reasonable time. Mr Gill and Ms Beach suggested that this meant that they must be dealt with speedily. That approach was no doubt put forward because it has given rise to authorities both in Strasbourg and here that a short period of time within which action must be taken is required and, more importantly, that lack of resources cannot be a relevant factor to excuse any delay. Those authorities are concerned with detention and the requirement of Article 5(4) that there be a speedy review before an independent Tribunal of any detention. It is obvious why particular speed is required in such circumstances; it is equally obvious that such a requirement is not applicable in cases such as these.
Nevertheless, there must be a recognition that there is an obligation to give proper effect to Convention rights. In Saad & Others v Secretary of State for the Home Department [2001] EWCA Civ. 2008 at paragraph 11 Lord Phillips, M.R. said:—
"… it is convenient to refer to refugees in respect of whom Contracting States have duties under the Convention as having Convention rights. Public International Law requires the signatories to the Convention must implement it in a manner which is reasonably efficacious. There is no doubt that this country is under an obligation under international law to enable those who are in truth refugees to exercise their Convention rights."
This must mean that it is incumbent on the defendant to ensure that one who claims to be a refugee must have his claim dealt with within a reasonable time so that, if it is established, his Convention rights can be exercised. This was recognised by the Court of Appeal in Secretary of State for the Home Department v S [2007] EWCA Civ. 346, judgment in which was handed down on 19 June 2007. Since Mr Jay and Mr Gill were counsel in that case and it was an appeal from a decision of mine, we were able to consider it in detail notwithstanding it was decided so recently. I shall have to consider it further in due course, but on the need for decisions to be made within a reasonable time, Carnwath LJ, who gave the lead judgment, said this in paragraph 51:—
"The Act does not lay down specific time limits for the handling of asylum applications. Delay may work in different ways for different groups: advantageous for some, disadvantageous for others.
No doubt it is implicit in the statute that applications should be dealt with within 'a reasonable time'. That says little in itself, it is a flexible concept, allowing scope for ….. depending not only on the volume of applications and available resources to deal with them, but also on differences in the circumstances and needs of different groups of asylum seekers. But … in resolving such competing demands, fairness and consistency are also vital considerations."
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