R (Omokayode) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 06 March 2014 |
| Neutral Citation | [2014] EWHC 594 (Admin) |
| Docket Number | Case No: CO/1973/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 March 2014 |
[2014] EWHC 594 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Andrews DBE
Case No: CO/1973/2012
Ms Nicola Braganza (instructed by Birnberg Peirce & Partners) for the Claimant
Ms Julie Anderson (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 13 February 2014
This claim for judicial review started life as a challenge to the failure by the Secretary of State to make a decision on the Claimant's application for discretionary leave to remain in the United Kingdom on human rights grounds, which was made on 11 May 2007. A decision on the Claimant's application was eventually made on 27 February 2012, although a letter sent to her solicitors on 26 August 2011 had indicated that she would be granted leave subject to security checks. She was granted Discretionary Leave to Remain ("DLR") outside the Immigration Rules for a period of three years, in line with the Defendant's published policy.
Following that decision, the Claimant sought and obtained permission to amend her grounds of claim to challenge the decision on the basis that she should have been granted Indefinite Leave to Remain ("ILR"). The grounds were further amended to take account of the decision of King J. in R ( Geraldo, Aroun and Iqbal) v SSHD [2013] EWHC 2763 (Admin), which post-dated the grant of permission to bring judicial review in the present case. The claimants in those cases, like the Claimant in the present case, were claiming that they should have been granted ILR instead of DLR. Though, of course, each case was fact-specific, each of those claimants contended that his claim "should have been dealt with" by 19 July 2011, that if it had been considered before then it would have resulted in the grant of ILR, and that therefore he had been caught to his detriment by a change of policy by the Defendant introduced on 20 July 2011 to grant only DLR in such cases.
The claims failed. King J. followed the principles articulated by the Court of Appeal in R (S, H & Q) v SSHD [2009] EWCA Civ 142 that mere administrative delay, uncoupled from any promise or commitment to deal with a case by a certain date, does not readily give rise to an illegality relevant to a subsequent decision properly based on current policy calling for "corrective" intervention by the court, and arguments of "unfairness" based on administrative delay simpliciter do not give rise to any jurisdiction in the court to intervene. He also adopted the observations of Mitting J in R(Shah) v SSHD [2013] EWHC 2206 (Admin) at paragraph 36:
"… The Secretary of State is entitled to apply policy applicable as at the date of the decision under challenge. Secondly, the court is concerned not with maladministration but only with illegality, so that if maladministration produces a decision that is unlawful, that can be the subject of a successful challenge but not otherwise. Thirdly, there is no principle of administrative law that if the Secretary of State had made a decision earlier resulting in a more favourable outcome for an individual, then whatever the changed circumstances may be when the decision was actually made, that more favourable decision must be made …."
King J. held that in a context where none of the claimants had any entitlement to the grant of leave within the Rules, it could not be said that there was an obligation to make a decision in any of their cases prior to 20th July 2011 such that not to make it before that date was an unlawful omission on the part of the Defendant. Even if the claimants had been able to point to evidence of serious maladministration in the Defendant not dealing with their respective cases sooner than she did, such maladministration in and of itself cannot give rise to an illegality in the decision when it was made, capable of founding the intervention of the court which was sought. He said, at para 116:
"Administrative delay in making a decision may in certain circumstances lead to a court granting relief by way of an order requiring a decision to be made, but the relief being sought here is of a very different kind".
More recently, a challenge to the grant of DLR rather than ILR was considered in this court by Lewis J in the case of R (Mohammed) v SSHD [2014] EWHC 98 (Admin) (not to be confused with the judgment of Stephen Morris QC in an earlier case with the same name [2012] EWHC 3091(Admin)). In that case, the principal basis of challenge to a decision made in March 2013 to grant a further period of DLR was that the claimant should have been granted ILR instead of DLR in 2009 and that the Defendant should have exercised her discretion and granted him ILR in 2013 to cure that alleged "historic injustice". Alternatively it was argued that that factor was, at least, a material consideration which the Defendant should have taken into account. The decision to grant DLR was also challenged as irrational or Wednesbury unreasonable, in that it was alleged that the Defendant failed to have regard to the ill-health of the Claimant and his wife and the fact that his circumstances were unlikely to change, and failed to have regard to the interests of his daughter as required under s.55 of the Borders, Citizenship and Immigration Act 2009. All these arguments were unsuccessful.
As in the present case, the letter from the Defendant informing the claimant that he had been granted DLR gave no reasons for refusing to grant ILR. It stated that he had been granted leave "in accordance with the published Home Office Asylum Policy Instruction on Discretionary Leave". Lewis J. held that it was implicit in the decision that the Defendant had considered the request for further leave made by the claimant, and that the Defendant considered that granting discretionary leave was the appropriate course of action, applying the normal policy applicable in such cases, rather than, exceptionally, granting indefinite leave to remain. That was a rational, lawful decision. It did not involve the application of a blanket policy nor did it disclose any failure to consider the matters put forward by the claimant in his application.
In dealing with the submission that the policy was applied in an unfair and unlawful manner and failed to take into account the circumstances of the claimant, his family and his child, because there were no factors militating against a grant of indefinite leave and there were additional compassionate family and child circumstances militating in favour of granting ILR, Lewis J. said this:
"That submission reads as if the Defendant is in some way obliged to grant indefinite leave to remain unless there are positive reasons for refusing it. In fact, that is not the position. The Defendant is entitled to adopt a policy whereby those who do not have leave to remain in the United Kingdom may be granted discretionary leave to remain because of the particular circumstances of the individual or his family. The Defendant is also entitled to adopt a policy whereby an individual will generally need to complete a qualifying period of six years pursuant to the grant of discretionary leave before being eligible for the grant of indefinite leave. That is a lawful, rational, policy."
I agree with those observations. It follows from the reasoning in that case that where the Secretary of State is adhering to published policy, in exercising a discretion to confer a benefit on someone to which they would not otherwise be entitled, there is no obligation to give reasons for not making an exception to that policy. One cannot draw any inference from the absence of such reasons in the decision letter, let alone the inference that the decision maker has failed to give consideration to whether the case is so exceptional as to warrant a departure from policy and grant ILR.
Undaunted by these developments, the Claimant nonetheless seeks to persuade the Court that her case is different from the Geraldo and Mohammed cases and that because her claim to ILR is so compelling, she was entitled to an explanation from the Defendant as to why it was being refused and DLR granted instead. It was submitted that the Court was entitled to draw the inference that the decision maker must have failed to take into consideration all the evidence put forward by the Claimant in support of her claim for ILR because, if that evidence been given even the most cursory examination, the only lawful and rational conclusion would have been that ILR should be granted. The Claimant's case was said to be closely analogous to the two specific circumstances in which the policy itself recognizes that ILR rather than DLR would be appropriate, and there is always a residual discretion to make an exception to the policy in such circumstances.
Despite the forceful manner in which those submissions were urged upon the Court by Ms Braganza, I am unable to accede to them. There is no material distinction between this case and that of Mohammed other than the negative feature that the Claimant has a criminal record, a matter to which I shall return later in this judgment. The delay in this case, long though it was, did not give rise to any illegality, and even if the delay in itself had been unlawful, the appropriate remedy would have been a mandatory order requiring the Defendant to make a decision. Any such decision would have been made in accordance with current policy, as indeed the eventual decision was. There was no obligation on the...
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