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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Shah, R (On the Application Of) v Secretary of State for the Home Department  EWCA Civ 1114 (06 October 2015)
Cite as:  EWCA Civ 1114
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ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MS CLARE MOULDER)
London, WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SYED SHAH||Applicant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Respondent|
WordWave International Limited
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The Respondent did not appear and was not represented
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"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]."
"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".
"60. For the reasons set out above I have concluded 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 in the UK in a way which safeguards and promotes the welfare of children and this duty is not confined to child applicants.
(ii)The policy "Every Child Matters" does not as a matter of construction extend to applications for adult applicants with (non-applicant) children in the UK. There was therefore no breach of policy in this case but there was a failure to make arrangements pursuant to the duty in section 55.
(iii)The delay in dealing with the application for the reconsideration did not amount to an unreasonable delay at common law as the claimant failed to establish on the evidence that he suffered a particular detriment which the Home Office has failed to alleviate.
(iv)There was no breach of the claimant's article 8 rights as a result of the delay on the basis that I have found that the claimant has not established that the defendant's delay caused him substantial prejudice and accordingly there can be no entitlement to damages under section 8 of the Human Rights Act 1998."
"Therefore whilst I accept that if his immigration status had not been precarious he might have had a chance, I do not think the evidence supports a finding that he 'would' have had a chance as counsel for the claimant submitted".
"However there is no evidence to suggest that the delay on the part of the defendant was the sole or even the main reason why the claimant was not appointed sole carer. The social work report identifies a number of factors and the claimant did not challenge the guardianship proceedings. On the facts of this case for the reasons set out above the claimant has not established that the detriment, as formulated by the claimant, of not having the opportunity to present his case as sole carer was something which can be said to be something which the defendant has failed to alleviate. Even if the matter had been dealt with promptly by the defendant, the other matters raised in the social worker's report and referred to above would appear to have been significant obstacles to any application on the part of the claimant ... ".
"4. In my view the declaration sought by the claimant goes beyond my findings as set out in the judgment. To repeat my conclusions set out at paragraph 60 of the judgment, I have concluded that there is a duty on the defendant under section 55 of the 2009 Act to make arrangements to deal with applications which concern children in the UK in a way which safeguards and promotes the welfare of children. I have not concluded that the time taken to decide this application was contrary to section 55 of the 2009 Act.
5. Further, I have expressly stated in sub-paragraph 5 of paragraph 25 of the judgment that it is for the Secretary of State to determine what arrangements should be put in place in order to discharge their duty under section 55, and it is the absence of such arrangements which, in my view, amounts to a breach of her duties under section 55. The absence of such arrangements do not in my view lead to a conclusion that the statutory guidance was unlawful ... ".
"There was no evidence to suggest that the delay on the part of the SSHD was the sole or even the main reason why the claimant was not appointed sole carer for his child (see para 50 of the judgment).
Thus, even if the claimant were logically right to suggest that the delay must have been caused by the SSHD's failure to put arrangements in place so as to take into account the best interests of non-applicant children, the delay cannot have given raise to the claim sought to be advanced.
There are no grounds for contending that the judge misconstrued para 2.20 of 'Every Child Matters', nor that the guidance was itself unlawful, nor that the judge applied the wrong approach under article 8, or as to undue delay."