R Syed Shah v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws |
| Judgment Date | 06 October 2015 |
| Neutral Citation | [2015] EWCA Civ 1114 |
| Date | 06 October 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C4/2014/2659 |
[2015] EWCA Civ 1114
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MS CLARE MOULDER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Laws
C4/2014/2659
Mr A Vaughan (instructed by Duncan Lewis) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
This is a renewed application for permission to appeal against a decision of Clare Moulder, sitting as a Deputy High Court Judge in the Administrative Court on 4 July 2014. By that decision, she dismissed the applicant's application for judicial review. The applicant in the proceedings had sought to impugn the Secretary of State's delay in reaching a decision ultimately made on 27 May 2014 upon the applicant's application for limited leave to remain in the United Kingdom as a parent.
The applicant is a Pakistani national, born on 2 July 1987. He came to the United Kingdom in 2003 on a visitor's visa but unlawfully overstayed his leave. In April 2009, he married his British partner. A son, R, was born in November 2010 and is a British citizen.
An application for leave to remain on Article 8 grounds was refused on 27 May 2011. In June 2011, the applicant requested reconsideration of that refusal and it is the Secretary of State's delay in processing that request that forms the subject of the complaint in these proceedings. On 14 August 2012, the applicant's solicitors wrote to the Home Office stating that the applicant had separated from his wife. They described ongoing family proceedings and a dispute between the applicant and his wife and R's grandparents (the wife's parents) concerning the custody of the child R. The letter stated:
a. "Our client instructs that he wishes to remain in the UK with his child and remain as his sole carer. The family courts have exercised some concern as to our client's immigration status in the UK and it remains apparent that if it were not for his immigration status, our client would be the most appropriate carer for [R]."
A further letter of 15 November 2012 sought expedition of the application for leave to remain "as a matter of extreme urgency", asserting that:
a. "Our client is suffering an extreme detriment from the unresolved issues regarding his immigration status, as this is having an adverse effect of the outcome of the family proceedings".
That produced something of a stone wall and on 17 January 2013, as I understand it, the Family Court made a special guardianship order in favour of R's maternal grandparents, with a contact order in favour of the applicant.
The judicial review claim was launched on 27 February 2013 and judicial review permission was granted on 5 July 2013. A claim for damages was included. As I have said, leave to remain was at length granted to the applicant on 27 May 2014 but the applicant persists in his claim that the delay was unlawful and seeks damages. The Deputy Judge proceeded to cite section 55 of the Borders, Citizenship and Immigration Act 2009 and material provisions contained in the statutory guidance document Every Child Matters.
The applicant submitted there was a breach of section 55 and that paragraph 220 of Every Child Matters (which I will not set out) required the Secretary of State to expedite immigration applications where a child was likely to be affected. The delay in the case, it was said, was Wednesbury unreasonable or conspicuously unfair, the delay was itself a violation of Article 8 and there should be damages for breach of the Article. The Deputy Judge discussed all of the applicant's submissions fully and carefully. At the end of her judgment she summarised her conclusions in this way:
a. "60. For the reasons set out above I have concluded
i. that:
(i) There is a duty on the defendant under section 55 of the Borders, Citizenship and Immigration Act 2009 to make arrangements to deal with applications which concern children...
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