R Masso v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Michael Fordham |
| Judgment Date | 14 January 2014 |
| Neutral Citation | [2014] EWHC 159 (Admin) |
| Docket Number | CO/11596/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 January 2014 |
[2014] EWHC 159 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice Strand
London WC2A 2LL
Michael Fordham QC
CO/11596/2011
Mr P Turner (instructed by Barnes, Harrild & Dyer) appeared on behalf of the Claimant
Mr N Chapman (instructed by Treasury Solicitor) appeared on behalf of the Defendant
THE DEPUTY JUDGE: This is a claim for judicial review for which permission was granted by Charles J on 2 November 2012. The claimant entered the United Kingdom in 2001 aged, I think, 9. He was here with his mother and brother, who on 8 April 2003 were granted exceptional leave to remain ("ELR") for a period of 4 years to expire on 7 July 2007. The family made an in-time application for an extension of their leave to remain on 29 March 2007. What happened after that was this. The case clearly required a decision as to whether the family members, by this time I think four of them, were entitled to be given indefinite leave to remain ("ILR"). It became caught up with a large number of outstanding matters waiting to be dealt with by decision makers acting for the Secretary of State. That has come to be known as "the legacy", and there are a long line of cases that have arisen out of the way in which those "legacy" cases, of which they were various kinds, were dealt with or not dealt with.
Eventually, the Secretary of State granted indefinite leave to remain to the claimant's mother and his two siblings on 8 February 2012. The previous year, in a decision dated 13 April 2011, which appears may only have been received by the claimant or on his behalf in April 2011, the Secretary of State made a decision in the claimant's case and the decision was to grant discretionary leave to remain ("DLR") for a period of 3 years. By the time the Secretary of State came to make that decision the claimant had been investigated, prosecuted, convicted and sentenced for criminal offences culminating in a sentence in September 2010 to 20 months of youth custody. That offending, which was plainly the basis for the Secretary of State's April 2011 decision, was a matter which had come to the Secretary of State's attention in April 2010 as being the subject of ongoing proceedings.
It is submitted on behalf of the claimant that had his case been dealt with prior to April 2010 he would have obtained ILR and, moreover, that ILR would not have been revoked or varied or discontinued in the light of the subsequent criminal offending. It is common ground for the purposes of the issues in this case that that is right. The claimant was, on the face of it, eligible for ILR and would have obtained ILR. The focus of the challenge for judicial review is, therefore, on the decision to grant the 3 years' DLR and not to grant the ILR that was being sought and which would but for the recent criminal conviction have been granted.
The claimant essentially has two grounds on which it is submitted that the Secretary of State acted unlawfully in granting DLR only in this case, although the two grounds in the end overlap. Firstly, it is submitted that in all the circumstances of this case the Secretary of State owed a public law duty as at April 2011 to grant ILR notwithstanding the circumstances as they stood at that date. That, therefore, is the public law duty ground. The second ground is that the Secretary of State, even if she did not owe a public law duty to grant ILR, owed a public law duty to have regard to all relevant considerations and that there has been a failure in this case to have regard, or as Mr Turner put it proper regard, to the relevant features of the case.
I deal first with the public law duty ground. In order to succeed on this ground the claimant needs to satisfy the court of two things. Firstly, that there was an unlawful delay on the part of the Secretary of State in the failure to have decided the claimant's ILR application prior to April 2010. Secondly, on the basis that there was an unlawful delay, that in all the circumstances of this case there is a conspicuous unfairness in the Secretary of State focusing on the present circumstances in April 2011 rather than remedying the "historic injustice" in the claimant having failed to obtain what he would have obtained but for the unlawful delay, that is to say the grant of ILR.
In my judgment, the insurmountable difficulty which the claimant faces on this aspect of the case is in making good the submission that there was unlawfulness in the failure to have decided the application prior to April 2010. Mr Turner has focused, in my judgment correctly, on the question of whether the Secretary of State failed to prioritise dealing with the application given the various circumstances of the case. Mr Turner accepts, again in my judgment correctly, that one sensible way to test this part of the analysis is to ask the question whether as at 16 February 2009 the Secretary of State was acting unlawfully in failing to prioritise the case and accelerate the decision making. That is not the exclusive focus in time because the claimant relies on a statutory duty to have regard to the best interests of the children, which duty only came into force in November 2009. I will come back to that point.
The reason why 16 February is a helpful focus is because that was the point in time at which the question of prioritisation in this case came to a head. It came to a head because the claimant's solicitors, at that stage acting for all members of the family — all four of whom were awaiting decisions on their ILR applications and who had chased the Secretary of State at various stages during the chronology in this case — had written a letter before claim dated 26 January 2009 threatening judicial review on grounds of the ongoing delay in the way in which the applications were being dealt with. That letter before claim led to a decision letter from UKBA dated 16 February 2009 which specifically addressed the question of prioritising the decision making on the family's ILR applications, and declined to do so.
In my judgment, the claimant is unable to sustain the argument that, as at that stage, the Secretary of State was acting unlawfully in the way in which these decisions were being dealt with and in declining to accelerate or prioritise them.
Mr Turner suggested in his skeleton argument two grounds by reference to published policy, and in his oral submissions developed further points by reference to described criteria which he says, either individually or in aggregate, ought to have led the Secretary of State, acting fairly and lawfully and reasonably, to have recognised the inappropriateness of ongoing delay and the need for prioritisation. In my judgment, whether individually or in aggregate, none of them constitute a basis for concluding that the delay in this case viewed at that time was unlawful.
The backcloth for consideration of delay in the context of the legacy is the familiar case of R (FH) v Secretary of State for the Home Department [2007] EWHC 1571 (Admin), a decision of Collins J. It is that case which provided the backcloth for the published policy on which reliance is placed. Indeed, the case of FH is referred to and quoted in the policy guidance. It is headed " Case Resolution Directorate — Priorities and Exceptional Circumstances". The policy, and I will not go through it in detail, deals with circumstances in which cases ought to be expedited and the need to look for evidence to support any claims that there are exceptional circumstances to justify acceleration.
The two grounds referred to in that guidance on which reliance is placed are, firstly, "serious mishandling of the case" and, secondly, "clear and immediate issues of vulnerability". "Seriousness mishandling of the case" is described in the guidance as follows:
"Case is seriously mishandled (wrong decision/factually inaccurate).
Where the BIA accepts that it has made an incorrect decision and that decision needs to be put right.
Many applicants say that the BIA has made a mistake but you should only expedite cases where the BIA has accepted that an error has occurred.
'Error' cases are not the same as 'mishandled' cases. You should not expedite mishandled cases unless the mishandling was serious and prolonged. As example of mishandling might be that the BIA has lost the file; lost the application; or failed to respond to correspondence."
Mr Turner submits that, on the face of it, that 'exceptional circumstances' criterion was met in this case. He relies in particular on the fact that between June 2007 and May 2008 there were, as he described it, some four occasions on which letters were simply ignored when they ought to have been responded to. Lamentable though it is that any letters should go ignored or unanswered, in my judgment it is quite impossible to conclude that that circumstances of itself falls within the language and purpose of this policy criterion so as to have made it...
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Upper Tribunal (Immigration and asylum chamber), 2021-03-03, HU/24135/2018
...another. However, it was open to the Judge to consider the approach adopted in R. (M) v. Secretary of State for the Home Department [2014] EWHC 159 (Admin) in which the High Court held that a three-year delay in considering a matter was not unlawful delay in circumstances where there were n......