R (S) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Lord Justice Moore-Bick,Mr Justice Lightman |
| Judgment Date | 19 June 2007 |
| Neutral Citation | [2007] EWCA Civ 546 |
| Docket Number | Case No: C4/2007/0323 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 June 2007 |
[2007] EWCA Civ 546
Lord Justice Carnwath
Lord Justice Moore-Bick and
Mr Justice Lightman
Case No: C4/2007/0323
CO/10088/2005
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE COLLINS
Royal Courts of Justice
Strand, London, WC2A 2LL
Robert Jay QC (instructed by Treasury Solicitor) for the Appellant
Manjit Gill QC & Basharat Ali (instructed by Messrs. Aman Solicitors Advocates) for the Respondent
Hearing date: Monday 12 th June, 2006
This appeal raises a difficult issue relating to the effect of adverse policy changes during the consideration of an asylum application. In particular, we are concerned with the scope of the judgment of this court in R (Rashid) v Secretary of State [2005] EWCA CIV 744 (“ Rashid”). A subsidiary issue arises from the lack of provision for Afghans to apply for entry clearance from their own country.
Factual background
The claimant is a citizen of Afghanistan. He entered the United Kingdom in September 1999, at the same time as his cousin (“HM”). They both applied for asylum on 17 th September. HM's application was in due course refused on 16 th February 2002, but he was granted Exceptional Leave to Remain (“ELR”), and now has Indefinite Leave to Remain (“ILR”). In the claimant's case, in spite of a number of letters from his solicitors, there was no substantive response for over two years.
In the meantime there were two significant policy developments – one general and one specific. First, in January 2001, targets set by a “Public Service Agreement” had the effect that (unknown to the claimant) older asylum applications such as his were “put on hold”, in order to meet targets on new applications. Secondly, in November 2001 and April 2002 there were changes in the policy towards Afghan asylum seekers, following the removal of the Taliban regime. I shall need to return in more detail to those changes.
The first significant response from the Home Office came on 25 January 2002, in the form of a letter stating:
“Unfortunately a sharp increase in applications for asylum received in 2001 has meant applications received prior to 2001 have been put on hold for the time being. [S] applied in September 1999 and I regret to say his claim is therefore unable to be considered at present. We are however fully aware that he needs to be interviewed before any decision can be made and we will invite him to attend the Home Office when it is convenient to do so.”
Several further letters from the claimant's solicitors produced no further response, until 7 July 2003 when the Home Office wrote again:
“I can advise you that your client's Home Office file is currently in a queue awaiting the booking of a substantive asylum interview. Unfortunately, I am not able to advise you at this time when the interview is likely to take place. I can assure you, however, that you will be informed of the date, time and location of the interview, once we are in a position to confirm your interview.”
The claimant was eventually interviewed on 12 March 2004 and on 16 March his claim was refused. His appeal was rejected in June 2004 by the Adjudicator, who accepted that he had been subject to persecution, but held that, since the Taliban had by then been ousted, he was no longer at risk. He had also made a claim under Article 8 of the Human Rights Convention, supported by a letter from his employer attesting to his value as a member of their staff. He did not at this stage mention any personal ties in this country. This also failed. Permission to appeal was refused on 12 November 2004.
On 11 October 2004 he applied for discretionary leave to remain in the UK. This was refused on 3 November 2005. The letter also certified (under s.96(1) of the Nationality, Immigration and Asylum Act 2002) that the matters on which he relied could have been raised before the Adjudicator, with the result that there was no right of appeal against the refusal.
On 25 November, his solicitors submitted a statement from the claimant's girlfriend (“SB”), who was a married woman and a British citizen. The letter asked for the matter to be dealt with in confidence because of the sensitivity of her position. Her statement indicated that the relationship began in 2002. She added:
“I have discussed supporting his case in the past but he has said he did not want people to think that he was going out with me to get a visa and therefore refused to accept this support. I and his friends have now persuaded him to allow me to support his application. I shall be divorcing my husband [I have been involved in an unhappy marriage] and we shall marry after that.”
On 2 December 2005 the Home Office refused the application. The letter stated that the claim was “essentially based on the same factors as his previous claim”. It continued:
“Full consideration has been given to Mr [S's] asserted relationship with a British citizen, proof of his girlfriend's nationality has not been provided. However, your client has knowingly entered into a relationship in the full knowledge that he did not have the right to remain here. It is considered that the persistence of their relationship within the UK would, from the outset, be precarious. In any case, your client has not provided evidence to support his assertion that he has established family life with his girlfriend, on his own admission they do not live together. I should add that even if family life in the UK does exist and removal would interfere with such family life, your client does not have the right to ignore legitimate immigration controls or to choose where he wishes to enjoy his private life. This office has considered your claim but has concluded that the result of Mr [S's] removal would be wholly proportionate. Following your client's removal, it will be open to him to make an application for entry clearance, which, if successful will allow him to return to the UK lawfully as a spouse/fiancé of a person settled here.”
On 7 December 2005, the claimant commenced the present proceedings for judicial review of the decisions of 3 rd November and 2 nd December 2005.
Policy background
As I have noted, there were important policy changes during this period, both in relation to asylum applications generally, and specifically in respect of claims from Afghanistan. I will deal first with the latter.
Afghan asylum-seekers
The approach to Afghan asylum-seekers changed to reflect the developing political position in that country, following the invasion and the ousting of the Taliban regime in 2001. Under the policies applying until 15th November 2001, a credible claimant from that country could normally be expected to be granted ILR. Furthermore, until April 2002 even an unsuccessful asylum-seeker would normally have been granted ELR for 4 years (in recognition of the impossibility of returning anyone safely); and on the expiry of the 4 years, assuming good behaviour (which is not in issue in this case), he would have been granted ILR.
It is common ground, accordingly, that, if this claim had been dealt with before 18 April 2002, even if unsuccessful, the claimant would by now have obtained ILR, and would be irremovable. As already noted, his cousin HM who arrived on the same day received the benefit of that policy. Two friends (NA and AK), who arrived in 2001, and received ELR in the same year, have also obtained ILR.
Dealing with the backlog
In July 1998, the government issued a White Paper, Fairer, Faster and Firmer – A Modern Approach to Immigration and Asylum, setting out its policy for improving the handling of asylum claims. It referred to the inherited backlog of over 50,000 cases awaiting decision and over 20,000 queuing for an appeal hearing, some dating back to 1990, with the result that meritorious and needy claimants were being “condemned to a cruel limbo of worry and uncertainty over their future.” The Paper set out the policy for delivering faster decisions:
“The Government is aiming to ensure that by April 2001 most initial decisions will be made within 2 months of receipt and that most appeals to adjudicators will be heard within a further 4 months. Both those targets reflect average process times and the Government expects that many cases will be dealt with more quickly….” (para 8.9)
In a passage headed “Dealing with the asylum decision backlog”, the Paper said:
“In dealing with the backlog of cases it has inherited, the Government will adopt measures which are both firm and fair as well as promoting a faster process… the effects of long delays in reaching a decision will be taken into account and weighed with other considerations, but only in due proportion and in appropriate cases.” (para 8.28)
The last sentence was further explained in the next paragraph. For the oldest cases, from before July 1993, the delay would normally be considered “so serious as to justify, as a matter of fairness, the grant of indefinite leave to remain”. For those dating from 1993 to 1995, specific compassionate circumstances might justify the same treatment. For those dating from after 1995, the delay would not normally be a material factor.
The aims of the White Paper were not met. The system had great difficulty in coping with a large increase in applications, which exceeded 70,000 for each year between 1999 and 2002. The average ages of cases dealt with were 35 months in 1999, 18 months in 2000, 13 months in 2001 and 7 months in 2002. In the subsequent 3 years they were about 12 months.
On 1 January 2001 a...
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